Colon v. City of New York

Appellate Division of the Supreme Court of New York

Colon v. City of New York

41 A.D.2d 843, 342 N.Y.S.2d 441, 1973 N.Y. App. Div. LEXIS 4707

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

DecidedApril 16, 1973

StatusPublished

This text of 41 A.D.2d 843 (Colon 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

Colon v. City of New York, 41 A.D.2d 843, 342 N.Y.S.2d 441, 1973 N.Y. App. Div. LEXIS 4707 (N.Y. Ct. App. 1973).

Pincite

Opinion

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated October 8, 1971, which granted plaintiffs’ motion to compel defendant to accept a complaint and denied defendant’s cross motion to dismiss the action for failure timely to serve a complaint. Order reversed, in the exercise of discretion, with $20 costs and disbursements; plaintiffs’ motion denied; and defendant’s cross motion granted. In our opinion, the excuse offered by respondents for the delay of 22 months in prosecuting the action was improbable and inadequate. That and the failure to submit an affidavit of merits required dismissal of the complaint (cf. Fromberg v. 261 Broadway Estates, 38 A D 2d 752; Beckham v. Lefferts Gen. Hosp., 36 A D 2d 726; Carroll v. Estron Realty Corp., 31 A D 2d 903; Bradley v. City of New York, 24 A D 2d 490). Latham, Acting P. J., Christ and Brennan, JJ., concur; Shapiro and Benjamin, JJ., dissent and vote to affirm.

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In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated October 8, 1971, which granted plaintiffs’ motion to compel defendant to accept a complaint and denied defendant’s cross motion to dismiss the action for failure timely to serve a complaint. Order reversed, in the exercise of discretion, with $20 costs and disbursements; plaintiffs’ motion denied; and defendant’s cross motion granted. In our opinion, the excuse offered by respondents for the delay of 22 months in prosecuting the action was improbable and inadequate. That and the failure to submit an affidavit of merits required dismissal of the complaint (cf. Fromberg v. 261 Broadway Estates, 38 A D 2d 752; Beckham v. Lefferts Gen. Hosp., 36 A D 2d 726; Carroll v. Estron Realty Corp., 31 A D 2d 903; Bradley v. City of New York, 24 A D 2d 490). Latham, Acting P. J., Christ and Brennan, JJ., concur; Shapiro and Benjamin, JJ., dissent and vote to affirm.

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Bluebook (online)

41 A.D.2d 843, 342 N.Y.S.2d 441, 1973 N.Y. App. Div. LEXIS 4707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colon-v-city-of-new-york-nyappdiv-1973.