Tooley v. Howard Johnson's Inc.

29 A.D.2d 930, 289 N.Y.S.2d 128, 1968 N.Y. App. Div. LEXIS 4228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 1968
• Status: Published

Opinion

Order entered September 18, 1967, herein appealed from, unanimously reversed, on the law, the facts and in the exercise of discretion, with $30 costs and disbursements to appellants and the motion denied. The accident upon which the action for damages is based occurred in 1960. The case was noticed for trial in the Civil Court in 1964. Plaintiff allegedly discovered the claimed enlargement of injuries, the predicate for the motion to amend and to transfer, in May, 1966, but took no action for approxmately 12 months thereafter. No reasonable excuse is offered for the delay (Kai v. P. S. & M. Gatering Corp., 15 A D 2d 775; Kind v. Serebreny Gorp., 28 A D 2d 988; de los Beyes v. United States Lines Go., 28 A D 2d 991). Additionally, there is no affidavit of merits and there is insufficient to show a causal connection between the accident and the extensive injuries now asserted. Concur— Stevens, J. F., Eager, Steuer, Tilzer and McNally, JJ.