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Verre v. Rosas

391 N.E.2d 1010, 47 N.Y.2d 795, 417 N.Y.S.2d 929, 1979 N.Y. LEXIS 2059
CourtNew York Court of Appeals
DecidedMay 10, 1979
StatusPublished
Cited by16 cases

This text of 391 N.E.2d 1010 (Verre v. Rosas) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Verre v. Rosas, 391 N.E.2d 1010, 47 N.Y.2d 795, 417 N.Y.S.2d 929, 1979 N.Y. LEXIS 2059 (N.Y. 1979).

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Although plaintiffs satisfied the requirement that an affidavit of merit be submitted on an application to be relieved of their default, they offer no valid legal excuse for their delay. A summons was served just one week before the expiration of the three-year Statute of Limitations. Three and one-half months later defendants served a demand for a complaint. Plaintiffs ignored this demand for over 10 months and it was [796]*796only when they were served with the present motion to dismiss that they were aroused to serve their pleading. As excuse for the default plaintiffs’ attorneys advance only the assertion that they are engaged mostly in defense practice and that "this plaintiffs file was inadvertently not timely diaried for a complaint”.

The absence of any reasonable excuse for plaintiffs’ delay is determinative; there is no requisite that prejudice be shown before a motion to dismiss is granted in a case of this nature. Accordingly we cannot say that it was error to grant defendant’s motion to dismiss the action as a matter of law.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in a memorandum.

Order affirmed.

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Bluebook (online)
391 N.E.2d 1010, 47 N.Y.2d 795, 417 N.Y.S.2d 929, 1979 N.Y. LEXIS 2059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verre-v-rosas-ny-1979.