Salama v. Cohen — 16 N.Y.2d 1058

Majority

p. 1058

Edmund Salama, Appellant, v. Victor Cohen, Respondent. Angela Tomich et al., Appellants, v. Victor Cohen, Respondent.

Argued October 27, 1965;

decided December 1, 1965.

p. 1059

Milton 8. Ringlet for appellants.

Harold L. Schwab, Emile Z. Berman and A. Harold Frost for respondent.

In each of the above-entitled actions: Order of Appellate Division reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division. A motion to

p. 1060

dismiss under CPLB 3216 cannot be granted prior to the filing of a note of issue unless defendant has first served a written demand on the plaintiff to serve and file the note of issue within 45 days in accordance with the terms of the statute. (Cf. Fischer v. Pan Amer. World Airways, 16 N Y 2d 725 .)

Concur: Chief Judge Desmond and Judges Dye, Fuld, Van Voobhis, Burke, Scilepfi and Bergan.

Cases cited

Fischer v. Pan American World Airways, Inc. 16 N Y 2d 725 N.Y. 1965-07-09 p. 1060