Bamford v. Kaunitz
| Decision Date | 25 June 1971 |
| Citation | 322 N.Y.S.2d 838,37 A.D.2d 682 |
| Parties | Phillip O. BAMFORD, as Administrator of the Estate of Joseph Michael Bamford, Respondent v. Victor H. KAUNITZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Martin, Clearwater & Bell, John Ganotis, Syracuse, for appellant.
David Mark Wexler, Buffalo, for respondent.
Before DEL VECCHIO, J.P., and MARSH, GABRIELLI, MOULE and HENRY, JJ.
This wrongful death action was commenced by the service of a summons alone on November 16, 1966, twelve days before the expiration of the statute of limitations. Although a notice of appearance and demand for complaint was served on November 22, 1966, no complaint was forthcoming and no further step was taken in the litigation until February 1970, when an attorney other than the one who had prepared the summons contacted defendant's counsel to inquire as to the status of the case. Upon being advised that the case had been inactive for more than three years and that a complaint would not be accepted, the attorney acting for plaintiff served a complaint and, when it was returned, made this motion for an order relieving plaintiff of his default in serving the complaint and requiring defendant to accept service thereof. The excuse for the inordinate delay in service of a complaint offered in the affidavit of plaintiff's present attorney is that, over a four year period, conversations and correspondence with the original attorney of record, to whom the case had been referred, were fruitless in that the file had been either lost, mislaid or destroyed due to the latter's illness and the extensiveness of his practice.
We have recently reiterated that 'one asking for excuse for great delay in prosecution comes with a heavy burden of explanation' (Huether v. Blad, 35 A.D.2d 774, 775, 316 N.Y.S.2d 746, 748). That burden is not met by the record before us. Excuses such as those offered by plaintiff, which have been characterized as 'Law Office Failures', (Sortino v. Fisher, 20 A.D.2d 25, 29, 245 N.Y.S.2d 186, 192) 'have been weighed in the balance many times and found wanting.' (Goldberg v. Soifer, 30 A.D.2d 533, 534, 291 N.Y.S.2d 171, 172.) The excuse of illness of the attorney of record is also inadequate when it does not appear that the condition existed throughout the period of delay (Alaimo v. D & F Transit Inc., 35 A.D.2d 776, 316 N.Y.S.2d 690; Jerge v. Fuglewicz, 36 A.D.2d 890, 320 N.Y.S.2d 302) and when plaintiff was also represented...
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