Johnson v. Johnson

45 A.D.2d 899, 357 N.Y.S.2d 208, 1974 N.Y. App. Div. LEXIS 4520

Opinion

—Appeal from an order of the Supreme Court at Special Term entered November 20, 1973 in Montgomery County which granted defendants’ motion to dismiss the complaint for failure of timely service pursuant to CPLR 3012 (subd. [b]), and denied plaintiff’s cross motion to compel the defendants to accept the complaint. The action was commenced by service of a summons with notice. On March 9, 1973 the defendants served a notice of appearance with demand for the complaint by mail. About four months later the plaintiff served a verified complaint detailing a cause of action based upon breach of a warranty deed and fraud and deceit. The defendants did not reject the complaint or move to dismiss the. action for untimeliness pursuant to CPLR 3012 (subd. [b]) until some 18 days after the complaint’s sendee. The excuse of the plaintiff’s attorney to Special Term for the extended delay is minimal. The further contention upon this appeal that a delay of three or four months is the general custom among lawyers in the locality is inadequate to justify ignoring the plain requirements of the Civil Practice Law and Rules. In some circumstances it might be argued that the delay in retaining the complaint constituted a waiver of timeliness and was equivalent to an express extension of time. However, on balance, considering the inordinate delay on the part of the plaintiff, we are not inclined to interfere with the ruling of Special Term. Order affirmed, with $10 costs. Herlihy, P. J., Greenblott, Cooke, Kane and Reynolds, JJ., concur.