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Balancio v. American Optical Corp.

Court of Appeals of the State of New York
Oct 24, 1985
66 N.Y.2d 750 (N.Y. 1985)

Opinion

Decided October 24, 1985

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Gerard E. Delaney, J.

Frank T. D'Onofrio, Jr., for appellant.

George W. Scapolito for respondent.


On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 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 A.D.2d 589; see also, Rumrill v Epting, 88 A.D.2d 1047, 1048, n; compare, Smith v City of Troy, 77 A.D.2d 691, affd 54 N.Y.2d 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.


Summaries of

Balancio v. American Optical Corp.

Court of Appeals of the State of New York
Oct 24, 1985
66 N.Y.2d 750 (N.Y. 1985)
Case details for

Balancio v. American Optical Corp.

Case Details

Full title:JEFFREY R. BALANCIO, Appellant, v. AMERICAN OPTICAL CORPORATION, Respondent

Court:Court of Appeals of the State of New York

Date published: Oct 24, 1985

Citations

66 N.Y.2d 750 (N.Y. 1985)
497 N.Y.S.2d 360
488 N.E.2d 106

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