Brooks v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Brooks v. New York City Housing Authority

159 A.D.2d 673, 553 N.Y.S.2d 47, 1990 N.Y. App. Div. LEXIS 3612

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

DecidedMarch 26, 1990

StatusPublished

Cited by3 cases

This text of 159 A.D.2d 673 (Brooks v. New York City Housing Authority) 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

Brooks v. New York City Housing Authority, 159 A.D.2d 673, 553 N.Y.S.2d 47, 1990 N.Y. App. Div. LEXIS 3612 (N.Y. Ct. App. 1990).

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Opinion

In an action to recover damages for wrongful death, etc., the defendant New York City Housing Authority appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated March 15, 1988, which denied its motion to dismiss the complaint insofar as asserted against it for failure to timely serve the complaint pursuant to CPLR 3012 (b).

[674]*674Ordered that the order is reversed, as an exercise of discretion in the interest of justice, the motion is granted, and the complaint is dismissed insofar as asserted against the defendant New York City Housing Authority, without costs or disbursements.

The purported complaint herein was served more than 3 Vi years after the plaintiff was served with a written demand therefor (see, CPLR 3012 [b]), and then only in response to the instant motion to dismiss. The plaintiff offered neither an excuse for this inordinate delay, nor an affidavit of merits. Moreover, even if we were to conclude that the verified complaint constituted an adequate substitute for an affidavit of merit (see, Egan v Federated Dept. Stores, 108 AD2d 718), under the circumstances of this case we find that the Supreme Court improvidently exercised its discretion in denying the motion to dismiss (see, CPLR 3012 [d]). Brown, J. P., Eiber, Balletta and Rosenblatt, JJ., concur.

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In an action to recover damages for wrongful death, etc., the defendant New York City Housing Authority appeals from an order of the Supreme Court, Kings County (Cohen, J.), dated March 15, 1988, which denied its motion to dismiss the complaint insofar as asserted against it for failure to timely serve the complaint pursuant to CPLR 3012 (b).

[674]*674Ordered that the order is reversed, as an exercise of discretion in the interest of justice, the motion is granted, and the complaint is dismissed insofar as asserted against the defendant New York City Housing Authority, without costs or disbursements.

The purported complaint herein was served more than 3 Vi years after the plaintiff was served with a written demand therefor (see, CPLR 3012 [b]), and then only in response to the instant motion to dismiss. The plaintiff offered neither an excuse for this inordinate delay, nor an affidavit of merits. Moreover, even if we were to conclude that the verified complaint constituted an adequate substitute for an affidavit of merit (see, Egan v Federated Dept. Stores, 108 AD2d 718), under the circumstances of this case we find that the Supreme Court improvidently exercised its discretion in denying the motion to dismiss (see, CPLR 3012 [d]). Brown, J. P., Eiber, Balletta and Rosenblatt, JJ., concur.

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Bluebook (online)

159 A.D.2d 673, 553 N.Y.S.2d 47, 1990 N.Y. App. Div. LEXIS 3612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-new-york-city-housing-authority-nyappdiv-1990.

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