Kochon v. County of Oneida

41 A.D.2d 697, 342 N.Y.S.2d 717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1973
• Docket: Appeal No. 1
• Status: Published

Opinion

Order unanimously affirmed, without costs. Memorandum: While we do not approve of the delay of- three years in serving the complaint herein, this is not the usual case of inaction on the part of a plaintiff.- The fact that plaintiffs have suffered damages is not disputed. After service upon it of notices of claim and summons in an action for injunctive -relief and damages from pollution, defendant ■ county undertook to correct the.' condition. Plaintiffs withheld serving their complaint for two reasons, fust, to co-operate with the defendants in the correction of the condition, and second, to ascertain the full extent of their damages. The county corrected the condition by early 1972. Within six months thereafter plaintiffs served their complaint in -this action for damages. Since their claims were based on continuing torts, there was no need for such delay. Nevertheless, defendants-appellants had no' reason to believe that the action had been abandoned; the notices of claim fully apprisejl defendants of the nature of the action, and there is no showing of prejudice to them. Under these circumstances we should not disturb the discretion exercised by Special Term in denying the motions to dismiss (see Marco v. Sachs, 10 N Y 2d 542). (Appeal from order of Oneida Special Term denying motion to .dismiss complaint, in'.negligence action.) - - Present: — Goldman, P. J.-,. Marsh, Witmer, Moule and Henry, JJ1 .