Burke v. City of New York
| Decision Date | 19 February 1963 |
| Citation | 18 A.D.2d 898,237 N.Y.S.2d 980 |
| Parties | Nora BURKE, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. A. Doran, New York City, for defendant-appellant.
H. P. Clune, New York City, for plaintiff-respondent.
Before BOTEIN, P. J., and BREITEL, VALENTE, STEUER and BASTOW, JJ.
Order entered on April 24, 1962, granting plaintiff's motion for leave to serve a complaint in the action, unanimously reversed on the law and the facts, and, in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion denied. Plaintiff was involved in an accident in the Courthouse of the Surrogate's Court, New York County, on March 17, 1958. Suit was commenced against defendant by the service of a summons on March 16, 1959. Defendant appeared the same day and demanded a copy of the complaint in the action. Under section 257 of the Civil Practice Act, the complaint must be served within 20 days after the demand and if the plaintiff's attorney fails to serve a copy of the complaint defendant may apply to the court for a dismissal of the complaint. On February 14, 1962--almost 3 years after service of the summons--plaintiff's attorney served a complaint which was promptly returned by defendant. Plaintiff then made the instant motion for leave to serve a complaint, which motion was in effect an application to open the default in not serving the complaint up to that time. In our opinion there was no adequate justifiable excuse presented for the long delay in serving the complaint. Plaintiff's attorney failed to demonstrate any causal connection between the pressure of official business as a member of the New York State Assembly at the time the suit was commenced and the subsequent delay in serving a complaint. The further excuse of removal of the attorney's office and the misplacing of the file in the course of moving has been rejected as inadequate in other cases. (Moshman v. City of New York, 3 A.D.2d 824, 160 N.Y.S.2d 977; Malekian v. McLean Trucking Co., 10 A.D.2d 825, 198 N.Y.S.2d 345.)
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