Rodriguez v. City of New York

Appellate Division of the Supreme Court of New York

Rodriguez v. City of New York

22 A.D.2d 643, 252 N.Y.S.2d 893, 1964 N.Y. App. Div. LEXIS 3159

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

DecidedOctober 1, 1964

StatusPublished

This text of 22 A.D.2d 643 (Rodriguez 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

Rodriguez v. City of New York, 22 A.D.2d 643, 252 N.Y.S.2d 893, 1964 N.Y. App. Div. LEXIS 3159 (N.Y. Ct. App. 1964).

Pincite

Opinion

Order entered June 17, 1964 denying defendants-appellants’ motion to dismiss the complaint for lack of prosecution on condition plaintiff serves a defendant with the complaint—not theretofore served—within 5 days and placing the case on the calendar within 45 days, unanimously reversed, on the law, on the facte, and in the exercise of discretion, with $30 costs and disbursements to appellants, and the motion granted, with $10 costs. The accident occurred on January 4, 1961. A summons was originally served on October 3,1961. After service of process on other parties, defendants appeared by a combined notice of appearance on February 5, 1962. However, no complaint was ever served. Thus, a period of approximately 24 months elapsed from the time defendants demanded a complaint and the motion to dismiss was made. Plaintiff has failed to demonstrate any reasonable excuse for the inordinate delay in serving a complaint. Moreover, there was no proper affidavit of merits submitted. In fact, the papers indicate that counsel for plaintiff has been unable to locate his client for some time. Under the circumstances, it was an improvident exercise of discretion to deny the motion. Concur—Breitel, J. P., Valente, McNally, Eager and Steuer, JJ.

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Order entered June 17, 1964 denying defendants-appellants’ motion to dismiss the complaint for lack of prosecution on condition plaintiff serves a defendant with the complaint—not theretofore served—within 5 days and placing the case on the calendar within 45 days, unanimously reversed, on the law, on the facte, and in the exercise of discretion, with $30 costs and disbursements to appellants, and the motion granted, with $10 costs. The accident occurred on January 4, 1961. A summons was originally served on October 3,1961. After service of process on other parties, defendants appeared by a combined notice of appearance on February 5, 1962. However, no complaint was ever served. Thus, a period of approximately 24 months elapsed from the time defendants demanded a complaint and the motion to dismiss was made. Plaintiff has failed to demonstrate any reasonable excuse for the inordinate delay in serving a complaint. Moreover, there was no proper affidavit of merits submitted. In fact, the papers indicate that counsel for plaintiff has been unable to locate his client for some time. Under the circumstances, it was an improvident exercise of discretion to deny the motion. Concur—Breitel, J. P., Valente, McNally, Eager and Steuer, JJ.

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Bluebook (online)

22 A.D.2d 643, 252 N.Y.S.2d 893, 1964 N.Y. App. Div. LEXIS 3159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-city-of-new-york-nyappdiv-1964.