Schaffer v. Route Messenger Service Inc.

65 A.D.2d 809, 410 N.Y.S.2d 365, 1978 N.Y. App. Div. LEXIS 13693

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1978
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, plaintiff appeals (1) from an order of the Supreme Court, Suffolk County, dated July 14, 1977, which granted the motion of defendant Route Messenger Service, Inc., to dismiss the complaint for failure to prosecute, and (2) as limited by his brief, from so much of a further order of the same court, dated September 20, 1977, as, upon "reconsideration”, adhered to the original determination. Appeal from the order- dated July 14, 1977 dismissed as academic, without costs or disbursements. That order was superseded by the order dated September 20, 1977. Order dated September 20, 1977 reversed insofar as appealed from, without costs or disbursements, and motion to dismiss denied. Under the circumstances of this case, where there was only an eight-day delay in responding to a notice served pursuant to CPLR 3216, it was an improvident exercise of discretion to dismiss the complaint. Latham, J. P., Titone, Margett and Hawkins, JJ., concur.