New York Court of Appeals, 1985

Balancio v. American Optical Corp.

New York Court of Appeals · Decided October 24, 1985

66 N.Y.2d 750; 488 N.E.2d 106; 497 N.Y.S.2d 360; 1985 N.Y. LEXIS 17644

Cases that cite this one

24 later published cases cite this decision.

Muzio v. Alfano-Hardy (Appellate Division of the Supreme Court of New York 2022)
Michaels v. Sunrise Building & Remodeling, Inc. (Appellate Division of the Supreme Court of New York 2009)
F.E. v. Ebrahim (Appellate Division of the Supreme Court of New York 2026)
Brent v. TVR Group Inc (New York Supreme Court, Kings County 2025)
Midland Acupuncture, P.C. v. GEICO Ins. Co. (Appellate Terms of the Supreme Court of New York 2020)
Stroll v. Long Island Jewish Medical Center (Appellate Division of the Supreme Court of New York 2017)
Felix v. County of Nassau (Appellate Division of the Supreme Court of New York 2008)
Grant v. City of New York (Appellate Division of the Supreme Court of New York 2005)
Bokhari v. Home Depot U.S.A., Inc. (Appellate Division of the Supreme Court of New York 2004)
New York Central Mutual Fire Insurance v. Czumaj (Appellate Division of the Supreme Court of New York 2004)
Yi Pao Lu v. Scaduto (Appellate Division of the Supreme Court of New York 2003)
Secreto v. International Business Machines Corp. (New York Supreme Court 2003)
Johnson v. Sam Minskoff & Sons, Inc. (Appellate Division of the Supreme Court of New York 2001)
Cecere v. Peters (Appellate Division of the Supreme Court of New York 2000)
Miller v. Brust (Appellate Division of the Supreme Court of New York 2000)
Ross v. New York State Department of Health (Appellate Division of the Supreme Court of New York 1996)
Hazeltine Corp. v. Board of Assessors (Appellate Division of the Supreme Court of New York 1996)
Athanasiou v. Esposito (Appellate Division of the Supreme Court of New York 1995)
Wilson v. Nembhardt (Appellate Division of the Supreme Court of New York 1992)
S.C.E.F. Realty Corp. v. DeVerna (Appellate Division of the Supreme Court of New York 1991)
Martinisi v. Cornwall Hospital (Appellate Division of the Supreme Court of New York 1991)
Rohany v. State (N.Y. Ct. Cl. 1989)
Carlucci v. Carlucci (Appellate Division of the Supreme Court of New York 1988)
Slocum v. Board of Education, Binghamton City School District (Appellate Division of the Supreme Court of New York 1986)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We cannot say as a matter of law that the Appellate Division abused its discretion. Plaintiff also contends for the first time on appeal that the court lacked subject matter jurisdiction because the demand to file a note of issue was not served by registered or certified mail as the rule requires. He does not dispute that he received actual timely notice of the demand. The failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny, as jurisdictionally defective, a defendant’s motion to dismiss for neglect to prosecute (see, Beermont Corp. v Yager, 34 AD2d 589; see also, Rumrill v *752Epting, 88 AD2d 1047, 1048, n; compare, Smith v City of Troy, 77 AD2d 691, affd 54 NY2d 890 [incorrect statement of time period under statute]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander. Taking no part: Judge Titone.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.