18 A.D.2d 1015 | N.Y. App. Div. | 1963
In a negligence action to recover damages for personal injury, the defendant appeals from an order of the Supreme Court, Kings County, entered October 19, 1961, which granted plaintiff’s motion to open Ms default in failing to serve a complaint within the time prescribed (Civ. Prac. Act, § 257). Order reversed, without costs, and motion denied. The accident occurred on January 27, 1955. The action was commenced by the service of a summons on February 25, 1956. A notice of appearance was served by defendant on February 27, 1956. No complaint was served by plaintiff. On September 25, 1961 plaintiff moved to open his default in failing to serve a complaint. The explanation of plaintiff’s counsel for the delay was that, shortly after service of the summons, the office of his firm had been moved and that, in the process of moving, the records of this ease were inadvertently placed in a file of closed cases. Such explanation is insufficient to excuse the unreasonable delay in serving the complaint (Engle v. Yankee Realty Corp., 16 A D 2d 811; Wakschal v. Century Estates, 10 A D 2d 891, appeal dismissed 8 N Y 2d 1125). In our opinion, upon such a showing there was no basis for the exercise of discretion to grant the motion to open plaintiff’s default (Costanzo v. Schwedler, 14 A D 2d 814). Kleinfeld, Acting P. J., Christ, Brennan, Hill and HopMns, JJ., concur.