Talley v. Montefiore Hospital

Appellate Division of the Supreme Court of New York

Talley v. Montefiore Hospital

167 A.D.2d 231, 562 N.Y.S.2d 429, 1990 N.Y. App. Div. LEXIS 13554

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

DecidedNovember 15, 1990

StatusPublished

Cited by2 cases

This text of 167 A.D.2d 231 (Talley v. Montefiore Hospital) 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

Talley v. Montefiore Hospital, 167 A.D.2d 231, 562 N.Y.S.2d 429, 1990 N.Y. App. Div. LEXIS 13554 (N.Y. Ct. App. 1990).

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Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 6, 1989, which conditionally granted the defendant’s motion to dismiss plaintiff’s action based on plaintiff’s failure to comply with a prior order dated November 3, 1988, is unanimously affirmed, without costs.

Plaintiff’s complaint was dismissed on default for plaintiff’s failure to serve the complaint after demand. Subsequently, the court vacated the default on condition that plaintiff pay costs of the motion and serve the complaint within 30 days of order. It is disputed whether the complaint was then timely served. Alleging that it had not received the complaint until approximately 60 days after the date of the conditional order, defendant then moved to dismiss the action. The IAS court granted the motion conditionally, allowing plaintiff one more opportunity to serve the complaint.

This court adheres to liberally excusing nonprejudical defaults (Shure v Village of Westhampton Beach, 121 AD2d 887). Even if we were to find that plaintiff failed to comply with the first conditional order, under the circumstances presented, plaintiff has demonstrated both a reasonable excuse and a meritorious defense, such that there was no abuse of discretion in permitting plaintiff a further opportunity to serve the defendant. Concur—Kupferman, J. P., Carro, Ellerin, Wallach and Smith, JJ.

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Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 6, 1989, which conditionally granted the defendant’s motion to dismiss plaintiff’s action based on plaintiff’s failure to comply with a prior order dated November 3, 1988, is unanimously affirmed, without costs.

Plaintiff’s complaint was dismissed on default for plaintiff’s failure to serve the complaint after demand. Subsequently, the court vacated the default on condition that plaintiff pay costs of the motion and serve the complaint within 30 days of order. It is disputed whether the complaint was then timely served. Alleging that it had not received the complaint until approximately 60 days after the date of the conditional order, defendant then moved to dismiss the action. The IAS court granted the motion conditionally, allowing plaintiff one more opportunity to serve the complaint.

This court adheres to liberally excusing nonprejudical defaults (Shure v Village of Westhampton Beach, 121 AD2d 887). Even if we were to find that plaintiff failed to comply with the first conditional order, under the circumstances presented, plaintiff has demonstrated both a reasonable excuse and a meritorious defense, such that there was no abuse of discretion in permitting plaintiff a further opportunity to serve the defendant. Concur—Kupferman, J. P., Carro, Ellerin, Wallach and Smith, JJ.

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Bluebook (online)

167 A.D.2d 231, 562 N.Y.S.2d 429, 1990 N.Y. App. Div. LEXIS 13554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talley-v-montefiore-hospital-nyappdiv-1990.

Opinion

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