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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 13, 2007

StatusPublished

Cited by5 cases

This text of 38 A.D.3d 580 (American Telephone & Telegraph Co. v. Schnabel Foundation Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

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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.

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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.

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Bluebook (online)

38 A.D.3d 580, 832 N.Y.S.2d 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-telephone-telegraph-co-v-schnabel-foundation-co-nyappdiv-2007.

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