Welsh v. Kaskel

Appellate Division of the Supreme Court of New York

Welsh v. Kaskel

33 A.D.2d 803, 307 N.Y.S.2d 184, 1969 N.Y. App. Div. LEXIS 2532

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

DecidedDecember 22, 1969

StatusPublished

This text of 33 A.D.2d 803 (Welsh v. Kaskel) 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

Welsh v. Kaskel, 33 A.D.2d 803, 307 N.Y.S.2d 184, 1969 N.Y. App. Div. LEXIS 2532 (N.Y. Ct. App. 1969).

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Opinion

In a negligence action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Kings County, dated March 3, 1969, which (1) denied their motion, pursuant to CPLR 3012 (subd. [b]) to dismiss the action for failure to serve a complaint, and (2) granted plaintiff’s cross motion to permit her to serve a complaint. Order reversed, on the law and the facts, with $10 costs and disbursements; defendant’s motion granted; and plaintiff’s cross motion denied. Under the circumstances disclosed by the record, the denial of defendants’ motion to dismiss the action was an improvident exercise of discretion by the Special Term. The excuse offered by plaintiff’s attorney, to wit, that extensions of time lulled him into believing the complaint had already been served, is inadequate to justify the delay (see Gerson v. Finkelstein, 29 A D 2d 552; Zakarias v. Radio Patents Corp., 28 A D 2d 997; Francisco v. Walgreen Eastern Co., 25 A D 2d 681; Waldron v. Ward, 24 A D 2d 470; Greenwald v. Zyvith, 23 A D 2d 201). Christ, Acting P. J., Rabin and Martuscello, JJ., concur; Benjamin and Kleinfeld, JJ., dissent and vote to affirm the order, upon the opinion of the Special Term.

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In a negligence action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Kings County, dated March 3, 1969, which (1) denied their motion, pursuant to CPLR 3012 (subd. [b]) to dismiss the action for failure to serve a complaint, and (2) granted plaintiff’s cross motion to permit her to serve a complaint. Order reversed, on the law and the facts, with $10 costs and disbursements; defendant’s motion granted; and plaintiff’s cross motion denied. Under the circumstances disclosed by the record, the denial of defendants’ motion to dismiss the action was an improvident exercise of discretion by the Special Term. The excuse offered by plaintiff’s attorney, to wit, that extensions of time lulled him into believing the complaint had already been served, is inadequate to justify the delay (see Gerson v. Finkelstein, 29 A D 2d 552; Zakarias v. Radio Patents Corp., 28 A D 2d 997; Francisco v. Walgreen Eastern Co., 25 A D 2d 681; Waldron v. Ward, 24 A D 2d 470; Greenwald v. Zyvith, 23 A D 2d 201). Christ, Acting P. J., Rabin and Martuscello, JJ., concur; Benjamin and Kleinfeld, JJ., dissent and vote to affirm the order, upon the opinion of the Special Term.

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Bluebook (online)

33 A.D.2d 803, 307 N.Y.S.2d 184, 1969 N.Y. App. Div. LEXIS 2532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-kaskel-nyappdiv-1969.