Mooney v. Cardillo

49 A.D.2d 854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1975
• Status: Published

Opinion

Order, Supreme Court, New York County, entered April 2, 1975, denying defendant’s motion to dismiss the complaint for lack of in personam jurisdiction and for failure to timely serve a complaint, unanimously reversed, on the law, on the facts and in the exercise of discretion, and said motion granted, without costs and without disbursements. The instant action for an accounting of a now dissolved law partnership was purportedly commenced by substituted service on March 10, 1969. Defendant timely served a notice of appearance and demand on April 18, 1969. No further formal action was taken in the lawsuit until plaintiff attempted to serve his complaint on April 1, 1974. While the referee’s recommendation sustaining in personam jurisdiction is questionable in view of the equivocal affidavit of service executed and filed herein, we base our decision on the inordinate and inexcusable delay in prosecution. Neither the pendency of settlement negotiations (which were concluded, at the very latest, on August 8, 1972) nor defendant’s protracted illness in 1972 justifies plaintiff’s failure to serve his complaint for some five years after proper demand. Concur—Stevens, P. J., Kupferman, Murphy, Tilzer and Nunez, JJ.