4/16/2024 0 Comments Motion to dismiss new york![]() "The disadvantage is almost invariably to the plaintiff it often makes possible unanticipated events that can bring about a dismissal of the action. Siegel "often pointed out the drawbacks of starting an action with a summons and mere notice.instead of a full-fledged complaint," and articulated the procedural trap for the unwary (or negligent) as follows : If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default." CPLR 305 (b) states straightforwardly "Summons and notice. Ordinarily, there should be no risk to a plaintiff in using such a simple, efficient method to commence an action pursuant to CPLR 304 n action is commenced by filing a summons and complaint or summons with notice"], especially when there is a timing emergency if the statute of limitations is about to expire (see, Micro-Spy, Inc. The motions at bar illustrate the importance of understanding basic, elementary New York civil procedural rules, and serve as a cautionary tale of the possible danger of using a summons with notice to commence an action and risking dismissal if its inadequate. UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, including efiled documents/exhibits, the motion by the defendant to dismiss this action on the ground inter alia that the summons with notice does not comply with CPLR 305 (b), and the motion by the plaintiffs, pursuant to CPLR 3025, for inter alia leave to amend the summons with notice, are consolidated for disposition and decided as follows: Notice of Motion, Affidavits, & Exhibits 1, 2 The following papers having been read on this motion: ![]() ![]() MIGUEL ABREU and LOURDES ABREU, Individually and as natural guardians for minors ASHALEY ABREU and JHOEL ABREU and NICOLE ABREU, Plaintiffs,ĬOUNSEL FOR PLAINTIFF STEWART LAW FIRM, PLLC This opinion is uncorrected and will not be published in the printed Official Reports. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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