Simons v. Sanford Plaza, Inc.

Appellate Division of the Supreme Court of New York

Simons v. Sanford Plaza, Inc.

44 A.D.2d 710, 354 N.Y.S.2d 697, 1974 N.Y. App. Div. LEXIS 5205

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

DecidedApril 22, 1974

StatusPublished

Cited by6 cases

This text of 44 A.D.2d 710 (Simons v. Sanford Plaza, Inc.) 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

Simons v. Sanford Plaza, Inc., 44 A.D.2d 710, 354 N.Y.S.2d 697, 1974 N.Y. App. Div. LEXIS 5205 (N.Y. Ct. App. 1974).

Pincite

Opinion

—In a negligence action to recover damages personal by plaintiff Mary Simons a,nd for medical expenses, etc., incurred by her husband, defendant appeals from so much of an order of the Supreme Court, Suffolk County, dated September 11, 1973, as conditionally denied its motion, under CPLR 3012 (subd. [b]), to dismiss the action for failure to timely serve a complaint. Order reversed insofar as appealed from, on the law and the facts, with $20 costs and disbursements, and, as otherwise provided in the order, the motion is granted unconditionally. Plaintiffs failed to. serve a complaint for about 15 months after a written demand therefor by defendant. Special Term should not have permitted plaintiffs to serve their complaint in the absence of a successful motion by them to be relieved of their default (Beckham v. Lefferts Gen. Hosp., 36 A D 2d 726). They also failed to submit [711]*711a proper affidavit of merit in opposition to the motion (Powell v. Becker Truck Renting Corp., 20 A D 2d 573) and the excuse of law office failure is not sufficient to excuse this delay (Pellerin v. Groveville Corp., 34 A D 2d 650). Finally, defendant was not required to show that it was prejudiced by the delay in order to obtain a dismissal of the action (cf. Lavigne v. Allen, 36 A D 2d 981). Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In a negligence action to recover damages personal by plaintiff Mary Simons a,nd for medical expenses, etc., incurred by her husband, defendant appeals from so much of an order of the Supreme Court, Suffolk County, dated September 11, 1973, as conditionally denied its motion, under CPLR 3012 (subd. [b]), to dismiss the action for failure to timely serve a complaint. Order reversed insofar as appealed from, on the law and the facts, with $20 costs and disbursements, and, as otherwise provided in the order, the motion is granted unconditionally. Plaintiffs failed to. serve a complaint for about 15 months after a written demand therefor by defendant. Special Term should not have permitted plaintiffs to serve their complaint in the absence of a successful motion by them to be relieved of their default (Beckham v. Lefferts Gen. Hosp., 36 A D 2d 726). They also failed to submit [711]*711a proper affidavit of merit in opposition to the motion (Powell v. Becker Truck Renting Corp., 20 A D 2d 573) and the excuse of law office failure is not sufficient to excuse this delay (Pellerin v. Groveville Corp., 34 A D 2d 650). Finally, defendant was not required to show that it was prejudiced by the delay in order to obtain a dismissal of the action (cf. Lavigne v. Allen, 36 A D 2d 981). Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

44 A.D.2d 710, 354 N.Y.S.2d 697, 1974 N.Y. App. Div. LEXIS 5205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simons-v-sanford-plaza-inc-nyappdiv-1974.

Opinion

Related

Cite This Page — Counsel Stack