Manhattan King David Restaurant, Inc. v. Nathanson

269 A.D.2d 297, 703 N.Y.S.2d 43, 2000 N.Y. App. Div. LEXIS 2039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered August 7, 1998, which granted defendants’ motion to dismiss the complaint and to impose sanctions against the individual plaintiff, and denied plaintiffs’ cross motion to compel defendants’ acceptance of an untimely served complaint, unanimously affirmed, with costs.

The complaint was properly dismissed for failure to show a reasonable excuse for the two and a half-month delay in serving it and a meritorious cause of action (CPLR 3012 [b]; see, A & J Concrete Corp. v Arker, 54 NY2d 870). Defendants’ retention of the complaint was not a waiver of the untimely service, at least where their motion to dismiss was made only some three weeks after receiving the complaint in the mail (cf., Steen v New Deal Delivery Serv., 79 AD2d 963, 964, affd 54 NY2d 796). A $2,500 sanction was properly imposed against the individual plaintiff in view of his failure to comply with a Second Circuit sanction order insofar as it directed him to present a copy thereof to any court in the Circuit, whether State or Federal, in which he was pursuing litigation, tactics that were intended to delay, and unjustifiable litigiousness against these defendants. Concur — Sullivan, P. J., Nardelli, Wallach, Lerner and Buckley, JJ.