Flannery v. Stewart

Appellate Division of the Supreme Court of New York

Flannery v. Stewart

22 A.D.2d 786, 254 N.Y.S.2d 130, 1964 N.Y. App. Div. LEXIS 2709

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

DecidedNovember 24, 1964

StatusPublished

Cited by2 cases

This text of 22 A.D.2d 786 (Flannery v. Stewart) 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

Flannery v. Stewart, 22 A.D.2d 786, 254 N.Y.S.2d 130, 1964 N.Y. App. Div. LEXIS 2709 (N.Y. Ct. App. 1964).

Pincite

Opinion

—■ Order, entered on April 2, 1964, vacating an order dated November 21, 1963 which dismissed the action for failure to timely Serve the complaint, unanimously reversed, On the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to appellant, and the motion to vacate denied. This action seeking a recovery of $2,500,000 for libel was commenced by Service of a summons on February 5, 1963. Defendant appeared on February 25, 1963 and demanded a complaint. Eight months having elapsed after stich demand and no complaint having been served, defendant on October 24, 1963 moved to dismiss the action. That motion was granted by Order dated November 21, 1963 with leave to move to vacate. The instant motion to vacate the dismissal was not made until March 13, 1964. The excuse offered for the failure to serve the complaint, i.e., that the plaintiff was unable to Confer with counsel by reason of the former’s business Commitments, is inadequate. Not only does the explanation fail to excuse the delay prior to the dismissal of the action but it fails to show any creditable reason for the delay of almost four months in making the instant motion to vacate. In addition, there has been no adequate demonstration of merit. (See Keogh v. New York Post Corp., 22 A D 2d 659.) Concur — Botein, P. J., Rabin, Valente, Stevens and Eager, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—■ Order, entered on April 2, 1964, vacating an order dated November 21, 1963 which dismissed the action for failure to timely Serve the complaint, unanimously reversed, On the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to appellant, and the motion to vacate denied. This action seeking a recovery of $2,500,000 for libel was commenced by Service of a summons on February 5, 1963. Defendant appeared on February 25, 1963 and demanded a complaint. Eight months having elapsed after stich demand and no complaint having been served, defendant on October 24, 1963 moved to dismiss the action. That motion was granted by Order dated November 21, 1963 with leave to move to vacate. The instant motion to vacate the dismissal was not made until March 13, 1964. The excuse offered for the failure to serve the complaint, i.e., that the plaintiff was unable to Confer with counsel by reason of the former’s business Commitments, is inadequate. Not only does the explanation fail to excuse the delay prior to the dismissal of the action but it fails to show any creditable reason for the delay of almost four months in making the instant motion to vacate. In addition, there has been no adequate demonstration of merit. (See Keogh v. New York Post Corp., 22 A D 2d 659.) Concur — Botein, P. J., Rabin, Valente, Stevens and Eager, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

22 A.D.2d 786, 254 N.Y.S.2d 130, 1964 N.Y. App. Div. LEXIS 2709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flannery-v-stewart-nyappdiv-1964.

Opinion

Related

Cite This Page — Counsel Stack