Nocella v. City of New York

Appellate Division of the Supreme Court of New York

Nocella v. City of New York

18 A.D.2d 1015, 239 N.Y.S.2d 331, 1963 N.Y. App. Div. LEXIS 4138

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

DecidedMarch 18, 1963

StatusPublished

Cited by1 cases

This text of 18 A.D.2d 1015 (Nocella v. City of New York) 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

Nocella v. City of New York, 18 A.D.2d 1015, 239 N.Y.S.2d 331, 1963 N.Y. App. Div. LEXIS 4138 (N.Y. Ct. App. 1963).

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Opinion

In a negligence action to recover damages for personal injury, the defendant appeals from an order of the Supreme Court, Kings County, entered October 19, 1961, which granted plaintiff’s motion to open Ms default in failing to serve a complaint within the time prescribed (Civ. Prac. Act, § 257). Order reversed, without costs, and motion denied. The accident occurred on January 27, 1955. The action was commenced by the service of a summons on February 25, 1956. A notice of appearance was served by defendant on February 27, 1956. No complaint was served by plaintiff. On September 25, 1961 plaintiff moved to open his default in failing to serve a complaint. The explanation of plaintiff’s counsel for the delay was that, shortly after service of the summons, the office of his firm had been moved and that, in the process of moving, the records of this ease were inadvertently placed in a file of closed cases. Such explanation is insufficient to excuse the unreasonable delay in serving the complaint (Engle v. Yankee Realty Corp., 16 A D 2d 811; Wakschal v. Century Estates, 10 A D 2d 891, appeal dismissed 8 N Y 2d 1125). In our opinion, upon such a showing there was no basis for the exercise of discretion to grant the motion to open plaintiff’s default (Costanzo v. Schwedler, 14 A D 2d 814). Kleinfeld, Acting P. J., Christ, Brennan, Hill and HopMns, JJ., concur.

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In a negligence action to recover damages for personal injury, the defendant appeals from an order of the Supreme Court, Kings County, entered October 19, 1961, which granted plaintiff’s motion to open Ms default in failing to serve a complaint within the time prescribed (Civ. Prac. Act, § 257). Order reversed, without costs, and motion denied. The accident occurred on January 27, 1955. The action was commenced by the service of a summons on February 25, 1956. A notice of appearance was served by defendant on February 27, 1956. No complaint was served by plaintiff. On September 25, 1961 plaintiff moved to open his default in failing to serve a complaint. The explanation of plaintiff’s counsel for the delay was that, shortly after service of the summons, the office of his firm had been moved and that, in the process of moving, the records of this ease were inadvertently placed in a file of closed cases. Such explanation is insufficient to excuse the unreasonable delay in serving the complaint (Engle v. Yankee Realty Corp., 16 A D 2d 811; Wakschal v. Century Estates, 10 A D 2d 891, appeal dismissed 8 N Y 2d 1125). In our opinion, upon such a showing there was no basis for the exercise of discretion to grant the motion to open plaintiff’s default (Costanzo v. Schwedler, 14 A D 2d 814). Kleinfeld, Acting P. J., Christ, Brennan, Hill and HopMns, JJ., concur.

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Bluebook (online)

18 A.D.2d 1015, 239 N.Y.S.2d 331, 1963 N.Y. App. Div. LEXIS 4138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nocella-v-city-of-new-york-nyappdiv-1963.

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