Donnelly v. Pepicelli

90 A.D.2d 955, 456 N.Y.S.2d 543, 1982 N.Y. App. Div. LEXIS 19231

Opinions

Order reversed, with costs, and motion granted. Memorandum: Special Term granted defendant’s motion to dismiss the action for failure to serve a complaint unless plaintiff served a complaint within 20 days of its order. In making the order conditional, it abused its discretion (see Saraceno v Piscopo, 16 AD2d 735). Plaintiff’s moving papers contain no competent evidence of merit to the action and his excuse, that discovery was necessary to draft a complaint, is no more than a law office failure under the circumstances presented (see Cohen v First Nat. City Bank, 75 AD2d 837, affd 52 NY2d 863; Caton v Schenectady Gazette, 82 AD2d 949; and cf. Niesluchowski v Clute Motor Co., 85 AD2d 47). All concur, except Callahan, J., who dissents and votes to affirm, in the following memorandum.