In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Westchester County, dated November 5, 1973, which denied its motion to dismiss the action for failure to serve a complaint and granted plaintiff 20 days to serve the proposed complaint. Order reversed, in the exercise of discretion, without costs, and motion granted. To justify his failure to serve a complaint in more than 29 months, plaintiff’s counsel offered the familiar “law-office-failure” excuse, which this court has repeatedly rejected as patently insufficient (Fetter v. 217 Centre Corp., 38 A D 2d 840, and cases cited therein). Under these circumstances, we believe Special Term should have granted the motion to dismiss. Gulotta, P. J., Hopkins, Martuscello and Cohalan, JJ., concur; Shapiro, J., dissents and votes to modify the order by adding thereto a provision that plaintiff’s attorney personally pay $250 costs to defendant and to affirm the order as so modified.
Kahn v. Samson Management Corp.
353 N.Y.S.2d 227
N.Y. App. Div.1974Check TreatmentAI-generated responses must be verified and are not legal advice.