Dorgan v. Dunda

• Decision Date: 20 September 1990
• Citation: 561 N.Y.S.2d 110,165 A.D.2d 949
• Parties: Ella Marie DORGAN et al., Respondents, v. James G. DUNDA et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 110

561 N.Y.S.2d 110

165 A.D.2d 949

Ella Marie DORGAN et al., Respondents, v. James G. DUNDA et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division Third Department.

Sept. 20, 1990.

Smith, Sovik, Kendrick, Schwarzer & Sugnet, P.C. (Michael Paul Ringwood, of counsel), Syracuse, for appellants, et al., defendant.

O'Hara & Crough, P.C. (Carmen M. Garufi, of counsel), Syracuse, for respondents.

Before MAHONEY, P.J., and KANE, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court (Tait, Jr., J.), entered September 22, 1989 in Madison County, which, inter alia, denied the motion of defendants James G. Dunda and George Dutkewych to dismiss the action against them for failure to serve a complaint.

Supreme Court properly denied the motion to dismiss the action due to plaintiffs' failure to timely serve the complaint. Plaintiffs have offered both a satisfactory excuse for the delay and an adequate affidavit of merit (cf., Dattoria v. Dattoria, 161 A.D.2d 1009, 557 N.Y.S.2d 579). An affidavit by the physician for plaintiffs' counsel detailed the health problems which had caused the delay by counsel in serving the complaint. Therefore, since the initial delay of 13 days in serving the complaint was slight, the default unintentional and no prejudice shown, the excuse offered was sufficient (see, Bayer v. Domino Media, 147 A.D.2d 413, 538 N.Y.S.2d 11). Additionally, the affidavit of merit by plaintiffs' medical expert sufficiently alleged that defendants'...