Kushniruk v. Gorczyca

Appellate Division of the Supreme Court of New York

Kushniruk v. Gorczyca

25 A.D.2d 615, 267 N.Y.S.2d 739, 1966 N.Y. App. Div. LEXIS 4892

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

DecidedFebruary 24, 1966

StatusPublished

This text of 25 A.D.2d 615 (Kushniruk v. Gorczyca) 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

Kushniruk v. Gorczyca, 25 A.D.2d 615, 267 N.Y.S.2d 739, 1966 N.Y. App. Div. LEXIS 4892 (N.Y. Ct. App. 1966).

Pincite

Opinion

Order unanimously reversed, without costs of this appeal to any party, and motion denied, without costs. Memorandum: The accident which is the subject of this action occurred on January 23, 1961. In August and November of 1961 the then attorneys for plaintiff wrote letters to defendants setting forth the claims for damages. Nothing further was done .by plaintiff until January 17, 1963, six days prior to the running of the Statute of Limitations, when summons were served. Two weeks after such service defendants served notices of appearances and demands for the complaint. After plaintiff was in default for approximately one year and a half, defendants moved to dismiss the summons and plaintiff cross-moved to extend his time to serve a complaint. Defendants’ motion was granted, but with leave to plaintiff to renew his motion upon papers showing a meritorious cause of action. Four months later plaintiff renewed his motion and it is from the order extending plaintiff’s time in which to serve his complaint that this appeal is taken. The failure to serve a complaint more than 4 years after the accident and the complete neglect to serve a complaint for 18 months after service of defendants’ demand is inexcusable. The plaintiff’s gross delay in prosecuting his action forfeits his right to be relieved from his inaction and the extension granted by Special Term was an improvident exercise of discretion under the circumstances of this case. (Appeal from order of Erie Special Term granting plaintiff’s motion to extend time to serve complaint and compelling defendants to accept serivee.)

Present — Williams, P. J., Bastow, Goldman, Henry and Del Yecehio, JJ.

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Order unanimously reversed, without costs of this appeal to any party, and motion denied, without costs. Memorandum: The accident which is the subject of this action occurred on January 23, 1961. In August and November of 1961 the then attorneys for plaintiff wrote letters to defendants setting forth the claims for damages. Nothing further was done .by plaintiff until January 17, 1963, six days prior to the running of the Statute of Limitations, when summons were served. Two weeks after such service defendants served notices of appearances and demands for the complaint. After plaintiff was in default for approximately one year and a half, defendants moved to dismiss the summons and plaintiff cross-moved to extend his time to serve a complaint. Defendants’ motion was granted, but with leave to plaintiff to renew his motion upon papers showing a meritorious cause of action. Four months later plaintiff renewed his motion and it is from the order extending plaintiff’s time in which to serve his complaint that this appeal is taken. The failure to serve a complaint more than 4 years after the accident and the complete neglect to serve a complaint for 18 months after service of defendants’ demand is inexcusable. The plaintiff’s gross delay in prosecuting his action forfeits his right to be relieved from his inaction and the extension granted by Special Term was an improvident exercise of discretion under the circumstances of this case. (Appeal from order of Erie Special Term granting plaintiff’s motion to extend time to serve complaint and compelling defendants to accept serivee.)

Present — Williams, P. J., Bastow, Goldman, Henry and Del Yecehio, JJ.

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Bluebook (online)

25 A.D.2d 615, 267 N.Y.S.2d 739, 1966 N.Y. App. Div. LEXIS 4892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kushniruk-v-gorczyca-nyappdiv-1966.