Anglin v. Brailovsky

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Kings County, entered March 15, 1973, which granted a motion by defendants William Brailovsky and Tessie Brailovsky to dismiss the action as to them for failure to serve a complaint (CPLR 3012, subd. [b]). Order affirmed, without costs. No opinion. Shapiro, Acting P. J., Gulotta and Christ, JJ., concur; Brennan and Benjamin, JJ., dissent and vote to reverse and deny the motion with the following memorandum: Under the circumstances of this case, we believe that plaintiff’s default should be opened upon payment of $250 costs by plaintiff’s attorney (Moran v. Rynar, 39 A D 2d 718; Williams v. Jewish Hosp. of Brooklyn, 40 A D 2d 532; Stewart v. Board of Edwc. of City of N. Y., 49 A D 2d 698).