Frangione v. Cordasco

Appellate Division of the Supreme Court of New York

Frangione v. Cordasco

47 A.D.2d 996, 368 N.Y.S.2d 88, 1975 N.Y. App. Div. LEXIS 9493

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

DecidedApril 23, 1975

StatusPublished

Cited by2 cases

This text of 47 A.D.2d 996 (Frangione v. Cordasco) 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

Frangione v. Cordasco, 47 A.D.2d 996, 368 N.Y.S.2d 88, 1975 N.Y. App. Div. LEXIS 9493 (N.Y. Ct. App. 1975).

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Opinion

Order unanimously reversed, without costs, motion granted and action dismissed. Memorandum: The record in this case fails to disclose any sufficient excuse for the delay of more than 20 months in service of a [997]*997complaint following a demand therefor. As we have stated in Huether v Blad (35 AD2d 774, 775), the " 'one asking for excuse for great delay in prosecution comes with a heavy burden of explanation (Goldstein v Wickett, 3 AD2d 135; Walker v Ferri, 5 AD2d 24; Nicotera v Aliasso, 22 AD2d 758; Gino v Syracuse Mem. Hosp., 23 AD2d 964).’ (Hamilton v Dudley, 27 AD2d 701)”. In Bamford v Kaunitz (37 AD2d 682) we said: "Excuses such as those offered by plaintiff, which have been characterized as 'Law Office Failures’, (Sortino v Fisher, 20 AD2d 25, 29) 'have been weighed in the balance many times and found wanting.’ (Goldberg v Soifer, 30 AD2d 533, 534.) The excuse of illness of the attorney of record is also inadequate when it does not appear that the condition existed throughout the period of delay (Alaimo v D &F Tr., 35 AD2d 776; Jerge v Fuglewicz, 36 AD2d 890)”. The affidavit of merit submitted in opposition to the motion is unsatisfactory. Delia v Ramapo Gen. Hosp. (47 AD2d 522). On the record it was an improvident exercise of discretion to deny defendant’s motion to dismiss the action, made pursuant to CPLR 3012 (subd. [b]). (Appeal from order of Erie Special Term in malpractice action.) Present — Moule, J. P., Gardamone, Simons, Goldman and Del Vecchio, JJ.

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Order unanimously reversed, without costs, motion granted and action dismissed. Memorandum: The record in this case fails to disclose any sufficient excuse for the delay of more than 20 months in service of a [997]*997complaint following a demand therefor. As we have stated in Huether v Blad (35 AD2d 774, 775), the " 'one asking for excuse for great delay in prosecution comes with a heavy burden of explanation (Goldstein v Wickett, 3 AD2d 135; Walker v Ferri, 5 AD2d 24; Nicotera v Aliasso, 22 AD2d 758; Gino v Syracuse Mem. Hosp., 23 AD2d 964).’ (Hamilton v Dudley, 27 AD2d 701)”. In Bamford v Kaunitz (37 AD2d 682) we said: "Excuses such as those offered by plaintiff, which have been characterized as 'Law Office Failures’, (Sortino v Fisher, 20 AD2d 25, 29) 'have been weighed in the balance many times and found wanting.’ (Goldberg v Soifer, 30 AD2d 533, 534.) The excuse of illness of the attorney of record is also inadequate when it does not appear that the condition existed throughout the period of delay (Alaimo v D &F Tr., 35 AD2d 776; Jerge v Fuglewicz, 36 AD2d 890)”. The affidavit of merit submitted in opposition to the motion is unsatisfactory. Delia v Ramapo Gen. Hosp. (47 AD2d 522). On the record it was an improvident exercise of discretion to deny defendant’s motion to dismiss the action, made pursuant to CPLR 3012 (subd. [b]). (Appeal from order of Erie Special Term in malpractice action.) Present — Moule, J. P., Gardamone, Simons, Goldman and Del Vecchio, JJ.

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47 A.D.2d 996, 368 N.Y.S.2d 88, 1975 N.Y. App. Div. LEXIS 9493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frangione-v-cordasco-nyappdiv-1975.

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