Block v. New York City Health & Hospitals Corp.

Appellate Division of the Supreme Court of New York

Block v. New York City Health & Hospitals Corp.

78 A.D.2d 690, 432 N.Y.S.2d 521, 1980 N.Y. App. Div. LEXIS 13207

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

DecidedOctober 27, 1980

StatusPublished

Cited by1 cases

This text of 78 A.D.2d 690 (Block v. New York City Health & Hospitals Corp.) 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

Block v. New York City Health & Hospitals Corp., 78 A.D.2d 690, 432 N.Y.S.2d 521, 1980 N.Y. App. Div. LEXIS 13207 (N.Y. Ct. App. 1980).

Pincite

Opinion

In a wrongful death action, defendant appeals from an order of the Supreme Court, Kings County, dated September 20, 1979, which, inter alia, granted plaintiffs motion to compel defendant to accept service of the complaint. Order reversed, on the law, without costs or disbursements, plaintiffs motion to compel defendant to accept service of the complaint is denied and action is dismissed. In view of the plaintiffs delay of approximately 33 months in complying with defendant’s demand for service of a complaint, the inadequacy of the plaintiffs excuse for such inordinate delay, and her failure to establish a meritorious cause of action by evidentiary facts attested to by an individual with personal knowledge (see Barasch v Micucci, 49 NY2d 594), it was an abuse of discretion to grant plaintiffs motion to compel defendant to accept service of the complaint. The conclusory averments contained in the affidavit of the attorney for the plaintiff cannot serve as an appropriate affidavit of merits since such affidavit must be made by an individual having personal knowledge of the facts (Barasch v Micucci, supra). Special Term also erred in concluding that since the defendant had been afforded notice of the pending action by the prior service of a notice of claim, it had sustained no prejudice (see Verre v Rosas, 47 NY2d 795). Damiani, J. P., Titone, Mangano and Gibbons, JJ., concur.

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In a wrongful death action, defendant appeals from an order of the Supreme Court, Kings County, dated September 20, 1979, which, inter alia, granted plaintiffs motion to compel defendant to accept service of the complaint. Order reversed, on the law, without costs or disbursements, plaintiffs motion to compel defendant to accept service of the complaint is denied and action is dismissed. In view of the plaintiffs delay of approximately 33 months in complying with defendant’s demand for service of a complaint, the inadequacy of the plaintiffs excuse for such inordinate delay, and her failure to establish a meritorious cause of action by evidentiary facts attested to by an individual with personal knowledge (see Barasch v Micucci, 49 NY2d 594), it was an abuse of discretion to grant plaintiffs motion to compel defendant to accept service of the complaint. The conclusory averments contained in the affidavit of the attorney for the plaintiff cannot serve as an appropriate affidavit of merits since such affidavit must be made by an individual having personal knowledge of the facts (Barasch v Micucci, supra). Special Term also erred in concluding that since the defendant had been afforded notice of the pending action by the prior service of a notice of claim, it had sustained no prejudice (see Verre v Rosas, 47 NY2d 795). Damiani, J. P., Titone, Mangano and Gibbons, JJ., concur.

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Bluebook (online)

78 A.D.2d 690, 432 N.Y.S.2d 521, 1980 N.Y. App. Div. LEXIS 13207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/block-v-new-york-city-health-hospitals-corp-nyappdiv-1980.

Opinion

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