Brooklyn Union Gas Co. v. Aaer Sprayed Insulations, Inc.

Appellate Division of the Supreme Court of New York

Brooklyn Union Gas Co. v. Aaer Sprayed Insulations, Inc.

158 A.D.2d 292, 550 N.Y.S.2d 699, 1990 N.Y. App. Div. LEXIS 1076

Appellate Division of the Supreme Court of the State of New York·Decided February 6, 1990·Published·Cited by 5 cases

Opinion

In this action, which arises from the presence of asbestos in several facilities belonging to plaintiff, Brooklyn Union Gas Company, plaintiff initially served a summons with notice only upon the approximately 100 defendants. Fifty-seven of them, including appellants, made demands for the complaint pursuant to CPLR 3012 (b). Plaintiff eventually served a complaint, but not until after the 20-day period provided in CPLR 3012 (b) had expired. The service ranged from about two weeks to seven weeks late, with the majority being less than three weeks late. Defendants then filed motions or cross motions to dismiss for failure to timely comply with the demand.

The IAS court determined that the action was a meritorious one, and that the delay was excusable on the basis of law office failure. (CPLR 2005.) In addition, numerous other factors, including the magnitude of the litigation, were considered in determining whether the delay was reasonable, as was the lack of prejudice to the defendants. (Stark v Marine Power & Light Co., 99 AD2d 753.)

Upon examination of this record, we discern no abuse of discretion in the court’s denial of defendants’ motions, and accordingly, affirm. (CPLR 3012 [b], [d]; Preferred Mut. Ins. Co. [293] v Socha Bldrs., 128 AD2d 923.) Plaintiff provided an adequate showing of merit in its verified complaint and two affidavits submitted for this purpose. The complaint, we note, is essentially the same one that was upheld in City of New York v Keene Corp. (132 Misc 2d 745, affd 129 AD2d 1019). Concur— Murphy, P. J., Sullivan, Carro, Kassal and Wallach, JJ.

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In this action, which arises from the presence of asbestos in several facilities belonging to plaintiff, Brooklyn Union Gas Company, plaintiff initially served a summons with notice only upon the approximately 100 defendants. Fifty-seven of them, including appellants, made demands for the complaint pursuant to CPLR 3012 (b). Plaintiff eventually served a complaint, but not until after the 20-day period provided in CPLR 3012 (b) had expired. The service ranged from about two weeks to seven weeks late, with the majority being less than three weeks late. Defendants then filed motions or cross motions to dismiss for failure to timely comply with the demand.

The IAS court determined that the action was a meritorious one, and that the delay was excusable on the basis of law office failure. (CPLR 2005.) In addition, numerous other factors, including the magnitude of the litigation, were considered in determining whether the delay was reasonable, as was the lack of prejudice to the defendants. (Stark v Marine Power & Light Co., 99 AD2d 753.)

Upon examination of this record, we discern no abuse of discretion in the court’s denial of defendants’ motions, and accordingly, affirm. (CPLR 3012 [b], [d]; Preferred Mut. Ins. Co. [293] v Socha Bldrs., 128 AD2d 923.) Plaintiff provided an adequate showing of merit in its verified complaint and two affidavits submitted for this purpose. The complaint, we note, is essentially the same one that was upheld in City of New York v Keene Corp. (132 Misc 2d 745, affd 129 AD2d 1019). Concur— Murphy, P. J., Sullivan, Carro, Kassal and Wallach, JJ.

Brooklyn Union Gas Co. v. Aaer Sprayed Insulations, Inc., 158 A.D.2d 292, 550 N.Y.S.2d 699, 1990 N.Y. App. Div. LEXIS 1076 (N.Y. Ct. App. 1990).

Pincite

158 A.D.2d 292 (Brooklyn Union Gas Co. v. Aaer Sprayed Insulations, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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