Clark v. Prudential Insurance

18 A.D.2d 1090, 239 N.Y.S.2d 553, 1963 N.Y. App. Div. LEXIS 3928

Opinion

In an action by the beneficiaries of a life insurance policy to recover the face amount thereof, plaintiffs appeal from an order of the Supreme Court, Kings County, dated March -27, 1962, which denied their motion to extend their time to serve a response to defendant’s written request for certain admissions, such request having been made pursuant to section 322 of the Civil Practice Act. Order reversed, with $10 costs and disbursements, and motion granted. The plaintiffs’ time to serve a response to defendant’s written request is extended until 30 days after entry of the order hereon. Although the request for the admissions was served almost two years prior to the date of the instant motion, defendant has not been substantially prejudiced by the delay in plaintiffs’ failure to respond. Such failure was due to the plaintiffs’ attorney’s oversight which, in our opinion, is excusable under the circumstances here (Municipal Metallic Bed Mfg. Corp. v. Dobbs, 253 N. Y. 313, 317; Gallo v. Bosco, 13 A D 2d 982; Rusnak v. Doby, 267 App. Div. 122; Allen v. Fink, 211 App. Div. 411, 415; Gideon v. Dwyer, 17 Misc. 233, affd. 7 App. Div. 608 and 12 App. Div. 629; Dukas v. Tolmach, 142 N. Y. S. 2d 176; Matter of Moroney, 118 N. Y. S. 2d 349; Connolly v. Charlton Co., 118 N. Y. S. 2d 229). In the interest of justice, plaintiffs should now be afforded an opportunity to serve the response, as required by the statute (Civ. Prac. Act, § 322), to the defendant’s request for admissions. Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur. [33 Misc 2d 348.]