Young v. Mohawk Valley Cooperative Fire Insurance

Appellate Division of the Supreme Court of New York

Young v. Mohawk Valley Cooperative Fire Insurance

70 A.D.2d 970, 417 N.Y.S.2d 135, 1979 N.Y. App. Div. LEXIS 12605

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

DecidedJune 7, 1979

StatusPublished

This text of 70 A.D.2d 970 (Young v. Mohawk Valley Cooperative Fire Insurance) 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

Young v. Mohawk Valley Cooperative Fire Insurance, 70 A.D.2d 970, 417 N.Y.S.2d 135, 1979 N.Y. App. Div. LEXIS 12605 (N.Y. Ct. App. 1979).

Pincite

Opinion

— Appeal from an order of the County Court of Montgomery County, entered November 8, 1978 in Montgomery County, which denied defendants’ motion to dismiss the complaint. On September 29, 1970, plaintiffs commenced the instant action by service of summons and complaint wherein they alleged that, pursuant to policies of insurance, defendants owed them $8,400 because of [971]*971wind damage to their barn roof. In their answer defendants denied liability and asserted that the damage was caused by ice, sleet or snow and not within the coverage of the subject policies. Examinations before trial were then apparently conducted in April of 1971, and when nothing further was done to prosecute the case, defendants served a demand on plaintiffs on May 22, 1978, for the service and filing of a note of issue. Thereafter, plaintiffs did not comply with the demand, and, consequently, on September 12, 1978 defendants served a notice of motion seeking dismissal of the action (CPLR 3216). Following oral argument, the court denied the motion and scheduled the matter for trial, and this appeal ensued. We hold that the denial of defendants’ motion was error and must be reversed. Clearly, neither the death of plaintiffs’ original attorney of record in the case in October of 1976 nor plaintiffs’ indecision on whether or not to proceed with the action, as admitted by their present counsel, provides a justifiable excuse for the years of delay in this case and plaintiffs’ failure to comply with defendants’ demand for the filing and service of a note of issue (cf. Brender v Bermas, 37 AD2d 835). Additionally, plaintiffs have not made a showing in evidentiary form that they have a good and meritorious cause of action (cf. Havens v Best Way Lines, 60 AD2d 926, app dsmd 44 NY2d 729). Under these circumstances, it was an abuse of discretion for the court to deny defendants’ motion seeking dismissal of the complaint (Semprevivo v Wormuth, 49 AD2d 993). Order reversed, on the law and the facts, without costs; motion granted, and complaint dismissed. Mahoney, P. J., Greenblott, Sweeney, Main and Mikoll, JJ., concur.

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— Appeal from an order of the County Court of Montgomery County, entered November 8, 1978 in Montgomery County, which denied defendants’ motion to dismiss the complaint. On September 29, 1970, plaintiffs commenced the instant action by service of summons and complaint wherein they alleged that, pursuant to policies of insurance, defendants owed them $8,400 because of [971]*971wind damage to their barn roof. In their answer defendants denied liability and asserted that the damage was caused by ice, sleet or snow and not within the coverage of the subject policies. Examinations before trial were then apparently conducted in April of 1971, and when nothing further was done to prosecute the case, defendants served a demand on plaintiffs on May 22, 1978, for the service and filing of a note of issue. Thereafter, plaintiffs did not comply with the demand, and, consequently, on September 12, 1978 defendants served a notice of motion seeking dismissal of the action (CPLR 3216). Following oral argument, the court denied the motion and scheduled the matter for trial, and this appeal ensued. We hold that the denial of defendants’ motion was error and must be reversed. Clearly, neither the death of plaintiffs’ original attorney of record in the case in October of 1976 nor plaintiffs’ indecision on whether or not to proceed with the action, as admitted by their present counsel, provides a justifiable excuse for the years of delay in this case and plaintiffs’ failure to comply with defendants’ demand for the filing and service of a note of issue (cf. Brender v Bermas, 37 AD2d 835). Additionally, plaintiffs have not made a showing in evidentiary form that they have a good and meritorious cause of action (cf. Havens v Best Way Lines, 60 AD2d 926, app dsmd 44 NY2d 729). Under these circumstances, it was an abuse of discretion for the court to deny defendants’ motion seeking dismissal of the complaint (Semprevivo v Wormuth, 49 AD2d 993). Order reversed, on the law and the facts, without costs; motion granted, and complaint dismissed. Mahoney, P. J., Greenblott, Sweeney, Main and Mikoll, JJ., concur.

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Bluebook (online)

70 A.D.2d 970, 417 N.Y.S.2d 135, 1979 N.Y. App. Div. LEXIS 12605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-mohawk-valley-cooperative-fire-insurance-nyappdiv-1979.

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