Francisco v. Walgreen Eastern Co.
| Decision Date | 28 March 1966 |
| Parties | Robert FRANCISCO, Respondent, v. WALGREEN EASTERN CO., Inc., etc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Allen M. Taylor, New York City, for appellant; John P. Rung, Garden City, of counsel.
No appearance for respondent.
Before BELDOCK, P.J., and UGHETTA, CHRIST, BRENNAN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injury, defendant appeals from an order of the Supreme Court, Westchester County, entered August 18, 1965, which denied its motion to dismiss the action, pursuant to CPLR 3012, subd. (b), for failure to serve a complaint.
Order reversed, without costs; defendant's motion granted; and action dismissed, without costs.
The order denied the motion without prejudice to renewal upon plaintiff's failure to comply with a demand served pursuant to CPLR 3216. Rule 3216 as amended (L.1964, ch. 974) has no application to a motion made under CPLR 3012, subd. (b) to dismiss for failure to serve a complaint (Waldron v. Ward, 24 A.D.2d 470, 260 N.Y.S.2d 850). The only reason offered by plaintiff for his failure to serve the complaint for 29 months following the service of the summons was that his attorney had misplaced the file of the action. Such excuse is inadequate to justify the delay (Bradley v. City of New York, 24 A.D.2d 490, 261 N.Y.S.2d 406).
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