Dick v. Ross

49 A.D.2d 875, 373 N.Y.S.2d 363, 1975 N.Y. App. Div. LEXIS 11078

Opinion

In an action to recover damages for malicious prosecution, defendant appeals from an order of the Supreme Court, Nassau County, dated October 15, 1974, which (1) treated plaintiffs’ motion for permission to serve a proposed complaint as one to direct defendant to accept service of that complaint and, as such, granted the motion and (2) failed to pass upon defendant’s cross application to dismiss the action. Order reversed, with $20 costs and disbursements, motion denied, cross application granted, and action dismissed. Plaintiffs failed to adequately excuse the delay of approximately four and a half years in serving the complaint. Moreover, plaintiffs delayed for 15 months in making the motion to compel the acceptance of the complaint which had been rejected by defendant. Under the circumstances, Special Term erred by holding, in effect, that defendant had waived the untimely service of the complaint. Consequently, the action should have been dismissed for failure to serve a timely complaint (CPLR 3012, subd [b]). Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.