Ferreri v. Winston Mall, Inc.

• Decision Date: 29 November 1976
• Citation: 54 A.D.2d 970,388 N.Y.S.2d 675
• Parties: Rosemarie FERRERI, Respondent, v. WINSTON MALL, INC., etc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 675

388 N.Y.S.2d 675

54 A.D.2d 970

Rosemarie FERRERI, Respondent, v.WINSTON MALL, INC., etc., Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 29, 1976.

Waldorf, Ledwith & McGrane, Great Neck (Saul W. Strenger, Great Neck, of counsel), for appellant.

Freedman, Wray, Wagner & Tabakman, New City(David Mac Rae Wagner, New City, of counsel), for respondent.

Before COHALAN, Acting P.J., and RABIN, SHAPIRO and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Rockland County, dated April 29, 1975, which denied its motion to dismiss the action for failure to timely serve a complaint pursuant to CPLR 3012(subd. (b)).

Order reversed, on the law and the facts, with $50 costs and disbursements, and motion granted.

Plaintiff was injured on December 22, 1970.This action was commenced by service of a summons only on November 16, 1973, some 35 months subsequent to the date of injury.On January 4, 1974defendant served a notice of appearance and demand for service of a complaint, followed by two letters, dated June 24, 1974 and October 9, 1974, respectively, further requesting service of the complaint--all of which were ignored.On January 29, 1975defendant made its motion to dismiss for failure to serve the complaint, returnable on February 14, 1975.On January 30, 1975--13 months after the first demand therefor--plaintiff served an unverified complaint.

We viewplaintiff's failure to serve her complaint during the 13-month period between the first demand therefor and defendant's motion to dismiss as constituting an inordinate delay under the particular...