Greenberg v. Walcliffe Swimming Club Inc.

Appellate Division of the Supreme Court of New York

Greenberg v. Walcliffe Swimming Club Inc.

66 A.D.2d 795, 410 N.Y.S.2d 901, 1978 N.Y. App. Div. LEXIS 14090

Appellate Division of the Supreme Court of the State of New York·Decided December 11, 1978·Published

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Rockland County, dated September 28, 1977, which granted defendants’ motion to dismiss the action for failure to serve a complaint. Order affirmed, without costs or disbursements. This action was commenced by service of a summons only on July 15, 1976, three years after the injury. A notice of appearance and demand for a complaint was served on August 30, 1976. A complaint verified on September 6, 1977&emdash;more than one year after the demand&emdash;which was attached by the plaintiffs to an affirmation in opposition to a motion to dismiss the action, was rejected as untimely. The plaintiffs also failed to submit a proper affidavit of merits in opposition to the motion. Accordingly, it was not an improvident exercise of discretion to grant the motion (see Ferreri v Winston Mall, 54 AD2d 970, 971). Martuscello, J. P., Titone, Shapiro and O’Connor, JJ., concur.

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In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Rockland County, dated September 28, 1977, which granted defendants’ motion to dismiss the action for failure to serve a complaint. Order affirmed, without costs or disbursements. This action was commenced by service of a summons only on July 15, 1976, three years after the injury. A notice of appearance and demand for a complaint was served on August 30, 1976. A complaint verified on September 6, 1977&emdash;more than one year after the demand&emdash;which was attached by the plaintiffs to an affirmation in opposition to a motion to dismiss the action, was rejected as untimely. The plaintiffs also failed to submit a proper affidavit of merits in opposition to the motion. Accordingly, it was not an improvident exercise of discretion to grant the motion (see Ferreri v Winston Mall, 54 AD2d 970, 971). Martuscello, J. P., Titone, Shapiro and O’Connor, JJ., concur.

Greenberg v. Walcliffe Swimming Club Inc., 66 A.D.2d 795, 410 N.Y.S.2d 901, 1978 N.Y. App. Div. LEXIS 14090 (N.Y. Ct. App. 1978).

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Opinion

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