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Knauer v. Long Is. Service Corp.

Supreme Court, Appellate Term, First Department
Apr 6, 1967
53 Misc. 2d 1017 (N.Y. App. Term 1967)

Opinion

April 6, 1967

Appeal from the Civil Court of the City of New York, County of Bronx, DANIEL P. SCANLON, J.

Morton J. Levine for appellant.

Tolchin Schiff ( Richard O. Tolchin of counsel), for respondents.


This was an action pursuant to the Fair Labor Standards Act of 1938, as amended (U.S. Code, tit. 29, §§ 201-219) and plaintiffs were therefore required to serve a summons and formal pleading (N.Y. City Civil Ct. Rules, rule 5).

The failure to serve the complaint and summons was a jurisdictional defect ( Baum v. Halperin, 169 N.Y.S. 489) not waived by the service of a notice of appearance. (See CCA, §§ 402, 902, 1001, 1002, and McKinney's Cons. Laws of N.Y., Book 29A, Court Acts, Practice Commentaries thereto.)

The orders granting plaintiffs leave to serve a verified complaint, nunc pro tunc, and denying the cross motion to dismiss the action should be reversed.

The plaintiffs' motions should be denied and the cross motion to dismiss the action granted, with $10 costs.

Concur — STREIT, J.P., MARKOWITZ and GOLD, JJ.

Motions denied and cross motion granted, etc.


Summaries of

Knauer v. Long Is. Service Corp.

Supreme Court, Appellate Term, First Department
Apr 6, 1967
53 Misc. 2d 1017 (N.Y. App. Term 1967)
Case details for

Knauer v. Long Is. Service Corp.

Case Details

Full title:ARCHIE KNAUER et al., Respondents, v. LONG ISLAND AIRPORTS LIMOUSINE…

Court:Supreme Court, Appellate Term, First Department

Date published: Apr 6, 1967

Citations

53 Misc. 2d 1017 (N.Y. App. Term 1967)
280 N.Y.S.2d 343

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