Appellate Division of the Supreme Court of New York, 1979

Korta v. Rausch Equipment Corp.

Korta v. Rausch Equipment Corp.
Appellate Division of the Supreme Court of New York · Decided December 14, 1979
73 A.D.2d 824; 423 N.Y.S.2d 750; 1979 N.Y. App. Div. LEXIS 14711
Korta v. Rausch Equipment Corp.

Opinion of the Court

Order unanimously reversed, without costs, and motion denied. Memorandum: To resist a motion to dismiss for failure to serve a complaint after a demand plaintiff must (1) show that the delay is excusable and (2) submit proof by one having knowledge that the cause of action is meritorious (Dobbins v County of Erie, 65 AD2d 934, 935; Allen v Berton, 55 AD2d 1049). Plaintiff has failed to satisfy either of these requirements and the court abused its discretion in granting reargument and vacating its original order dismissing the action. (Appeal from order of Erie Supreme Court—reargument of motion to dismiss.) Present—Cardamone, J. P., Simons, Schnepp, Doerr and Witmer, JJ.

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