Whitney v. Stewart

175 A.D.2d 674

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1991
• Status: Published

Opinion

— Order insofar as appealed from unanimously reversed on the law without costs, cross motion denied, motion granted and complaint dismissed. Memorandum: Defendants served plaintiff with a demand for service of the complaint on December 20, 1988. When plaintiff failed to serve a complaint by December 5, 1989, defendants moved to dismiss pursuant to CPLR 3012 (b). Plaintiff, an attorney, then cross-moved for an extension of time in which to serve the complaint. We conclude that plaintiff failed to demonstrate a reasonable excuse for the lengthy delay in failing to serve a complaint and that Supreme Court improvidently exercised its discretion by denying the motion and granting plaintiff’s cross motion. There is no merit to plaintiff’s contention that his lengthy delay should be excused by reason of the relocation of plaintiff’s law office and consequent inattentiveness (see, Manfreda v Kendall Agency, 57 AD2d 727; Sinder v 345 Cypress Realty Corp., 34 AD2d 777), or unsubstantiated allegations that emotional and psychological problems stemming from his arrest and subsequent trial (see, Zolov v Donovan, 138 AD2d 484; Caton v Schenectady Gazette, 82 AD2d 949), or his ambivalence regarding pursuit of the action (see, Catón v Schenectady Gazette, supra), or the illness of a lawyer he wished to retain as trial counsel. We note that some eight months elapsed between service of the demand for the complaint and the onset of the prospective trial attorney’s illness. (Appeal from Order of Supreme Court, Ontario County, Curran, J. — Dismiss Action.) Present — Callahan, J. P., Boomer, Green and Balio, JJ.