BRADY v. REYNOLDS PRINTASIGN COMPANY, 59 N.Y.2d 979 (1983)

453 N.E.2d 1076, 466 N.Y.S.2d 659

FRANCES BRADY, as Administratrix of the Estate of ROBERT BRADY, Deceased, Appellant, v. REYNOLDS PRINTASIGN COMPANY et al., Respondents.

Court of Appeals of the State of New York.
Decided July 5, 1983

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, FRANCIS N. PECORA, J.

Page 980

Remo J. Acito and Elinore B. Klein for appellant.

Robert H. Fischler for respondents.

MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division so that it may reconsider the matter and may exercise its own discretion.

The Appellate Division erred in holding, as a matter of law because the only excuse tendered by plaintiff constituted law office failure, that Special Term had abused its discretion in granting plaintiff’s motion to vacate defendants’ 90-day demand (CPLR 3216) and denying defendants’ motion to dismiss the complaint for plaintiff’s failure to serve a note of issue in response to that demand (Miskiewicz v Hartley Rest. Corp., 58 N.Y.2d 963).

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur.

Page 981

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.