Smarek v. Padilla

78 A.D.2d 874, 433 N.Y.S.2d 29, 1980 N.Y. App. Div. LEXIS 13593

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1980
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County, dated August 17,1979, which (1) granted plaintiffs’ motion for an extension of time to serve the complaint and (2) denied defendants’ cross motion to dismiss the action for failure to serve a complaint. Order reversed, on the law, without costs or disbursements, motion denied, cross motion granted, and action dismissed. In our opinion, the 49-month delay between defendants’ demand for a complaint and plaintiffs’ alleged service thereof is without valid excuse (see Barasch v Micucci, 49 NY2d 594; Odess v Medical Center, Teamster Local 1034, 67 AD2d 941). The record reveals that a complaint could have been drafted and timely served with the aid of hospital records available to counsel, without resort to additional medical examinations. Nor does the fact that the infant plaintiff can still institute another action (see CPLR 208) warrant saving the instant action from dismissal (see Gundershein v Bradley-Mahoney Coal Corp., 295 NY 539,540). Mollen, P. J., Mangano, Margett and Weinstein, JJ., concur.