Gallagher v. City of New York
| Decision Date | 03 June 1963 |
| Parties | Ann K. GALLAGHER, as administratrix of Edith A. Gallagher deceased, Respondent, v. The CITY OF NEW YORK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Leo A. Larkin, New York City, Corporation Counsel, for appellant; Seymour B. Quel, New York City, of counsel.
Donald F. Ayers, New York City, for respondent.
Before BELDOCK, P. J., and UGHETTA, CHRIST, HILL and RABIN, JJ.
MEMORANDUM BY THE COURT.
In a wrongful death action, the defendant appeals from an order of the Supreme Court, Queens County, dated January 12, 1962, which on reargument granted plaintiff's motion to open her default in failing to serve a complaint within the time prescribed (Civil Practice Act, § 257), and extended her time to serve the complaint.
Order reversed, without costs, and motion denied.
This action was commenced by the service of a summons on November 1, 1958. The defendant on November 6, 1958 entered a general appearance and demanded a copy of the complaint. In April 1961, almost two and one-half years after service of the summons, plaintiff's attorney served a complaint upon defendant which was promptly returned by defendant as untimely. Thereafter, plaintiff moved to open the default and for an enlargement of time within which to serve the complaint. The explanation of plaintiff's counsel for the delay was that, subsequent to receipt of the notice of appearance, the file of the case bacame lodged behind the file drawer and was not discovered until said drawer was being completely changed for a replacement drawer.
In our opinion, such explanation is insufficient to excuse the unreasonable delay in serving the complaint, and there was no basis for the exercise of discretion to grant the motion to open plaintiff's default (Nocella v. City of New York, 18 A.D.2d 1015, 239 N.Y.S.2d 331). The excuse that the file was misplaced inadvertently is rejected as inadequate (cf. Cronin v. City of New York (Darol Enterprises, Inc.), 18 A.D.2d 995, 238 N.Y.S.2d 734; Burke v. City of New York, 18 A.D.2d 898, 237 N.Y.S.2d 980).
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