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Appellate Terms of the Supreme Court of New York, 1959

Eichhorst v. Mitchell Gardens Corp.

Eichhorst v. Mitchell Gardens Corp.
Appellate Terms of the Supreme Court of New York · Decided June 16, 1959 · Brown, Hart, Pette
18 Misc. 2d 238; 192 N.Y.S.2d 547; 1959 N.Y. Misc. LEXIS 3459

Counsel

Tropp & Steinbock (I. Sidney Worthman of counsel), for appellant., John P. Gering and George Greenstein for respondent.

Eichhorst v. Mitchell Gardens Corp.

Opinion of the Court

Per Curiam.

The question as to whether the note of issue was served before defendant moved to dismiss the action for lack of prosecution cannot be resolved upon the conflicting affidavits submitted herein. Prior service of the note of issue, if established, may be considered in determining the motion. {Richardson v. Erie R. R. Co., 280 App. Div. 958; Nelson v. Ryan, 214 App. Div. 821; Mladinich v. Livingston, 112 App. Div. 181.)

The order should be unanimously reversed on the facts, without costs, and motion to dismiss for lack of prosecution remitted to Special Term for disposition after the .taking of oral proof as to the dates on which the note of issue and motion papers were served.

Concur — Pette, Hart and Brown, JJ.

Order reversed, etc.

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