Mathews v. Harford

63 A.D.2d 759, 404 N.Y.S.2d 726, 1978 N.Y. App. Div. LEXIS 11698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1978
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered July 8, 1977 in Chemung County, which granted defendant’s motion to dismiss the action.

* On October 4, 1974, the present action to recover upon a debt on a simple contract and guarantee thereof was commenced by service upon defendants of a summons with notice. The very next day defendant replied through her attorney by serving upon plaintiff’s attorney a notice of appearance and a demand for a complaint. Thereafter, no complaint was ever served, and, ultimately, over two and one-half years later on May 31, 1977, defendant moved, pursuant to CPLR 3012 (subd [b]), to dismiss the action for failure to serve a complaint. Special Term granted the motion, and this appeal ensued. We hold that the order appealed from must be affirmed. Prejudice caused by the delay need not be shown by defendant in order for her to succeed on her motion (Hellner v Mannow, 41 AD2d 525), and, even accepting the argument of plaintiff’s attorney that service of the complaint was delayed pending the outcome of settlement negotiations, the fact remains that said attorney was unequivocally informed on March 25, 1975 that defendant was not interested in a settlement of the action. Nonetheless, no complaint has ever been served, and under these circumstances the court was clearly justified in granting the motion to dismiss in May of 1977 (Solomon v Perkins, 52 AD2d 753, app dsmd 39 NY2d 922). Order affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney, Staley, Jr., and Main, JJ., concur.

This order had been erroneously entered in Steuben County on March 31, 1977.