Cohen v. Boykin

Appellate Division of the Supreme Court of New York

Cohen v. Boykin

20 A.D.2d 632, 246 N.Y.S.2d 275, 1964 N.Y. App. Div. LEXIS 4483

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

DecidedJanuary 30, 1964

StatusPublished

This text of 20 A.D.2d 632 (Cohen v. Boykin) 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

Cohen v. Boykin, 20 A.D.2d 632, 246 N.Y.S.2d 275, 1964 N.Y. App. Div. LEXIS 4483 (N.Y. Ct. App. 1964).

Pincite

Opinion

Order, entered February 7, 1963, denying defendants’ motion to dismiss for lack of prosecution, unanimously affirmed, with $20 costs and disbursements to the respondent. It is true that an inordinate and inexcusable delay in service of a complaint in an action constitutes good ground for dismissal of the action for lack of prosecution. (See CPLR 3012, 3216; also, Marshall Field & Co. v. Stern & Herff Corp., 15 A D 2d 889, and cases cited; Burke, v. City of New York, 18 A D 2d 898, and cases cited.) The state of the record here, however, is not such as to justify our interference with the discretion reposed in Special Term in the matter of this type of motion. The moving affidavit is most inadequate and confusing. While it is stated therein that the plaintiff waited 19 months after commencing the action before service of a complaint, the defendants’ affidavit does not show when they served a notice of appearance and a demand for the complaint (plaintiff says the notice of appearance was interposed 10 months after service of the summons). Furthermore, the dates given in the affidavit indicate that the action was commenced in April and the complaint served in November of the same year. Finally, we are not told if or why defendants accepted service of the complaint in view of plaintiff’s alleged long-standing default in serving it, nor when defendants’ answer was served (an answer, dated Feb. 28, 1963, however, appears in the record). Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.

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Order, entered February 7, 1963, denying defendants’ motion to dismiss for lack of prosecution, unanimously affirmed, with $20 costs and disbursements to the respondent. It is true that an inordinate and inexcusable delay in service of a complaint in an action constitutes good ground for dismissal of the action for lack of prosecution. (See CPLR 3012, 3216; also, Marshall Field & Co. v. Stern & Herff Corp., 15 A D 2d 889, and cases cited; Burke, v. City of New York, 18 A D 2d 898, and cases cited.) The state of the record here, however, is not such as to justify our interference with the discretion reposed in Special Term in the matter of this type of motion. The moving affidavit is most inadequate and confusing. While it is stated therein that the plaintiff waited 19 months after commencing the action before service of a complaint, the defendants’ affidavit does not show when they served a notice of appearance and a demand for the complaint (plaintiff says the notice of appearance was interposed 10 months after service of the summons). Furthermore, the dates given in the affidavit indicate that the action was commenced in April and the complaint served in November of the same year. Finally, we are not told if or why defendants accepted service of the complaint in view of plaintiff’s alleged long-standing default in serving it, nor when defendants’ answer was served (an answer, dated Feb. 28, 1963, however, appears in the record). Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.

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Bluebook (online)

20 A.D.2d 632, 246 N.Y.S.2d 275, 1964 N.Y. App. Div. LEXIS 4483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-boykin-nyappdiv-1964.