Vleming v. Drive & Park, Inc.

68 A.D.2d 887, 414 N.Y.S.2d 31, 1979 N.Y. App. Div. LEXIS 11120

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1979
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the appeal is from an order of the Supreme Court, Dutchess County, dated August 5, 1977, which granted the plaintiffs motion to vacate an order dismissing the action for failure to serve a complaint. Order affirmed, without costs or disbursements. Approximately one month after serving a notice of appearance and demand for a complaint, appellant moved to dismiss the action for failure to serve a complaint. The motion was granted without opposition. Two months after the date of the order of dismissal and four months after the appellant had appeared, plaintiff moved to vacate the order. The motion was granted on condition that plaintiff immediately serve the complaint. From the moving papers, it appears that the action may be meritorious, that the plaintiff suffered substantial injuries, and that the appellant was not prejudiced by the delay. Accordingly, Special Term properly vacated the order of dismissal, and granted plaintiff leave to serve a late complaint (see Van Ness v Aetna Cas. & Sur. Co., 57 AD2d 832; Moran v Rynar, 39 AD2d 718). Titone, J. P., Lazer, Margett and Martuscello, JJ., concur.