Wade v. Miele

34 A.D.2d 656, 310 N.Y.S.2d 205, 1970 N.Y. App. Div. LEXIS 8441

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1970
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Kings County, dated September 23, 1969, which denied their motion to dismiss the action pursuant to CPLR 3012 (subd. [b]). Order reversed, with $50 costs and disbursements, on the law and the facts, and motion granted. The accident which gave rise to the action occurred on September 23, 1964 and plaintiffs, husband and wife, served their summons with notice on one defendant on September 15, .1967 and on the other defendant on September 26, 1967. Defendants served plaintiff-husband, who also is acting as plaintiffs’ attorney, with their notice of appearance and demand for the complaint on September 26, 1967. No complaint was received and on May 6, 1969 defendants moved to dismiss. In opposition, plaintiff husband averred that there was merit to the action in that defendants’ automobile ran into the rear of plaintiffs’ stopped automobile and that as an attorney he has diligently attended to legal matters involving others but “has somewhat neglected his own matter.” He made no attempt to open the default. We view plaintiffs’ failure to serve their complaint during the 18 months between demand therefor and defendants’ motion to dismiss as constituting inordinate delay and the excuse offered as patently insufficient. Under the circumstances it was an improvident exercise of discretion to deny defendants’ motion to dismiss (see Gerson v. Finkelstein, 29 A D 2d 552). Hopkins, Acting P. J., Munder, Martuscello, Latham and Brennan, JJ., concur.