Bloomfield v. City of New York

Appellate Division of the Supreme Court of New York

Bloomfield v. City of New York

38 A.D.3d 395, 830 N.Y.S.2d 900

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

DecidedMarch 22, 2007

StatusPublished

This text of 38 A.D.3d 395 (Bloomfield v. City of New York) 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

Bloomfield v. City of New York, 38 A.D.3d 395, 830 N.Y.S.2d 900 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered January 4, 2006, which denied plaintiffs motion for an order directing the Clerk to accept a late filing of summons and complaint and assign an index number, unanimously affirmed, without costs.

This action was commenced in 1988, and is thus governed by former CPLR 306-a (c) (see Schaffrick v City of Kingston, 217 AD2d 892 [1995]), under which the court would issue a nunc pro tunc order when timely filing had not been made (see Metropolitan Prop. & Cas. Ins. Co. v Roosevelt, 154 Misc 2d 336, 337 [1993]; Weinstein-Korn-Miller, NY Civ Prac ¶ 306-a.01). However, plaintiff let more than 17 years go by before filing his motion in 2005. This extensive delay in prosecuting the action was prejudicial to defendant, providing a proper basis to preclude plaintiff from filing the summons and complaint and proceeding with the litigation (see Gotay v Breitbart, 14 AD3d 452 [2005]; see also Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 723 [1986], appeal dismissed 69 NY2d 874 [1987]). Having properly denied the motion, the court cannot be faulted for dismissing the action in recognition of the inevitability of this consequence of the denial of the motion.

We have considered plaintiffs remaining arguments and find them without merit. Concur—Friedman, J.P, Nardelli, Sweeny, McGuire and Malone, JJ.

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Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered January 4, 2006, which denied plaintiffs motion for an order directing the Clerk to accept a late filing of summons and complaint and assign an index number, unanimously affirmed, without costs.

This action was commenced in 1988, and is thus governed by former CPLR 306-a (c) (see Schaffrick v City of Kingston, 217 AD2d 892 [1995]), under which the court would issue a nunc pro tunc order when timely filing had not been made (see Metropolitan Prop. & Cas. Ins. Co. v Roosevelt, 154 Misc 2d 336, 337 [1993]; Weinstein-Korn-Miller, NY Civ Prac ¶ 306-a.01). However, plaintiff let more than 17 years go by before filing his motion in 2005. This extensive delay in prosecuting the action was prejudicial to defendant, providing a proper basis to preclude plaintiff from filing the summons and complaint and proceeding with the litigation (see Gotay v Breitbart, 14 AD3d 452 [2005]; see also Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 723 [1986], appeal dismissed 69 NY2d 874 [1987]). Having properly denied the motion, the court cannot be faulted for dismissing the action in recognition of the inevitability of this consequence of the denial of the motion.

We have considered plaintiffs remaining arguments and find them without merit. Concur—Friedman, J.P, Nardelli, Sweeny, McGuire and Malone, JJ.

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Bluebook (online)

38 A.D.3d 395, 830 N.Y.S.2d 900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bloomfield-v-city-of-new-york-nyappdiv-2007.

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