O'Donnell v. County of Erie

159 A.D.2d 981, 553 N.Y.S.2d 1021, 1990 N.Y. App. Div. LEXIS 3285

Opinion

Order unanimously affirmed without costs. Memorandum: The court did not abuse its discretion in denying respondent’s motion to dismiss and in compelling respondent to accept late service of the complaint. In view of the county’s inordinate delay of nine years in perfecting this appeal, it should not be heard to complain about plaintiff’s five-week delay in serving the complaint. We add, however, that both parties have been guilty of egregious delay in this matter and that it is plaintiff’s burden to move the case forward. No further delay will be tolerated by this court, nor should any be tolerated by the trial court. (Appeal from order of Supreme Court, Erie County, Gossel, J. — dismiss complaint.) Present — Denman, J. P., Green, Pine, Lawton and Lowery, JJ.