Cronin v. City of New York
| Decision Date | 26 March 1963 |
| Parties | Gertrude CRONIN, as Administratrix ad Prosequendum upon the Estate of Eugene J. Cronin, Deceased, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant, and Darol Enterprises, Inc., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
S. Advocate, New York City, for defendant-appellant.
J. J. O'Connor, New York City, for plaintiff-respondent.
Before BREITEL, J. P., and RABIN, VALENTE, McNALLY and EAGER, JJ.
Order, entered November 21, 1961, insofar as the same grants the motion of the plaintiff herein for an extension of time to serve her complaint upon the defendant Darol Enterprises, Inc. and insofar as it directs service of the complaint upon the attorneys for said defendant, 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 for an order extending the time of the plaintiff to serve the complaint herein upon said defendant denied with $10 costs. The action, which was brought to recover for alleged wrongful death, occurring on October 19, 1958, was commenced by service of summons on November 25, 1959. The defendant-appellant appeared on December 30, 1959 and demanded service of a copy of the complaint. The complaint, however, was not served upon its attorney until September 8, 1961 and was promptly returned by said attorney. Thus, this motion is in effect an application to open the default in the service of the complaint, and, in support thereof, the plaintiff was bound to show merit in her case and a justifiable excuse for the default. (See Burke v. City of New York 18 A.D.2d 898, 237 N.Y.S.2d 980.) Here, the plaintiff's attorney assumes to take the blame for the default of upwards of 20 months in the service of a complaint. He avers that the failure to prepare and serve a complaint was due to his preoccupation, occasioned by the dissolution of his former law firm partnership, the concentration of his efforts thereafter to secure gainful employment, and the developing upon him of tasks and responsibilities in the matter of winding up the law practice and personal affairs of his deceased father. These circumstances, however, are not acceptable as an adequate excuse for the inordinate delay here. (See Burke v. City of New York, supra; 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...
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