Engle v. Yankee Realty Corp.

• Decision Date: 21 May 1962
• Citation: 228 N.Y.S.2d 856,16 A.D.2d 811
• Parties: Harold V. ENGLE, Respondent, v. YANKEE REALTY CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 856

228 N.Y.S.2d 856

16 A.D.2d 811

Harold V. ENGLE, Respondent, v.YANKEE REALTY CORPORATION, Appellant.

Supreme Court, Appellate Division, Second Department.

May 21, 1962.

Irving Segal, New York City, for appellant; James David Auslander, New York City, of counsel.

Joseph R. Schmitt, Yonkers, for respondent.

Before BELDOCK, P. J., and CHRIST, HILL, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries sustained as a result of a fall by plaintiff while working as a steamfitter on a building which was in the process of construction by defendant, the defendant appeals from so much of an order of the City Court of Yonkers, dated October 25, 1960, as failed to grant unconditionally its motion to dismiss the action by reason of plaintiff's failure to serve his complaint within the time prescribed (Civil Practice Act, § 257); as granted the motion 'unless the complaint is served upon the defendant's attorney within ten days;' and as directed defendant to accept service of the complaint within such ten day period.

Order, insofar as appealed from, reversed, with ten dollars costs and disbursements, and defendant's motion to dismiss the action granted unconditionally.

The accident occurred on April 3, 1957.The action was commenced by the service of a summons on November 23, 1957.A notice of appearance was served on November 29, 1957.On March 29, 1960, a few days prior to the expiration of the Statute of Limitations, plaintiff served his complaint.On March 30, 1960defendant returned the complaint as not timely served (Civil Practice Act, § 257).

In our opinion, under the circumstances the motion to dismiss should have been granted unconditionally.The explanation of plainti...