American Telephone & Telegraph Co. v. Schnabel Foundation Co.

Appellate Division of the Supreme Court of New York

American Telephone & Telegraph Co. v. Schnabel Foundation Co.

38 A.D.3d 580, 832 N.Y.S.2d 243

Appellate Division of the Supreme Court of the State of New York·Decided March 13, 2007·Published·Cited by 5 cases

Opinion

In an action to recover for damage to property, the defendant appeals from an order of the Supreme Court, Westchester County (La Cava, J.), entered April 6, 2006, which denied its motion to dismiss the action pursuant to CPLR 306-b and extended the plaintiffs time to serve it with process pursuant to that statute.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion to dismiss the action is granted.

The plaintiff exhibited an overall lack of diligence in prosecuting this action, failed to show proof of any attempt to serve the corporate defendant by service upon the Secretary of State until over a year after it had commenced this action in July 2004, failed to make any showing of merit, and failed to offer any excuse for the delay in serving the defendant other than a conclusory statement in its opposing counsel’s affirmation alleging “clerical oversight due to law office failure.” While the statute of limitations has now expired and the defendant did not show any prejudice, those factors were insufficient in the face of the plaintiffs failures, as set forth above, to warrant the denial of the defendant’s motion in this instance (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Ortiz v Malik, 35 AD3d 560 [2006]; Meusa v BMW Fin. Servs., 32 AD3d 830 [2006]; Rihal v Kirchhoff, 291 AD2d 548 [2002]). Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover for damage to property, the defendant appeals from an order of the Supreme Court, Westchester County (La Cava, J.), entered April 6, 2006, which denied its motion to dismiss the action pursuant to CPLR 306-b and extended the plaintiffs time to serve it with process pursuant to that statute.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion to dismiss the action is granted.

The plaintiff exhibited an overall lack of diligence in prosecuting this action, failed to show proof of any attempt to serve the corporate defendant by service upon the Secretary of State until over a year after it had commenced this action in July 2004, failed to make any showing of merit, and failed to offer any excuse for the delay in serving the defendant other than a conclusory statement in its opposing counsel’s affirmation alleging “clerical oversight due to law office failure.” While the statute of limitations has now expired and the defendant did not show any prejudice, those factors were insufficient in the face of the plaintiffs failures, as set forth above, to warrant the denial of the defendant’s motion in this instance (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Ortiz v Malik, 35 AD3d 560 [2006]; Meusa v BMW Fin. Servs., 32 AD3d 830 [2006]; Rihal v Kirchhoff, 291 AD2d 548 [2002]). Mastro, J.E, Krausman, Florio and Balkin, JJ., concur.

American Telephone & Telegraph Co. v. Schnabel Foundation Co., 38 A.D.3d 580, 832 N.Y.S.2d 243 (N.Y. Ct. App. 2007).

Pincite

38 A.D.3d 580 (American Telephone & Telegraph Co. v. Schnabel Foundation Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related