Graziano v. Albanese
| Decision Date | 16 September 1965 |
| Citation | 263 N.Y.S.2d 20,24 A.D.2d 712 |
| Parties | Erminia GRAZIANO and Anthony J. Graziano, Plaintiffs-Respondents, v. Marylou ALBANESE and Raymond Albanese, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Anthony J. Graziano, New York City, for plaintiffs-respondents.
Carl Raymond Nelson, for defendants-appellants.
Before BREITEL, J. P., and RABIN, VALENTE, STEVENS and EAGER, JJ.
Order, entered on November 10, 1964, denying defendant's motion pursuant to CPLR 3012(b) to dismiss the action on the ground that plaintiffs have failed to serve a complaint, unanimously reversed, on the law and on the facts, with $30 costs and disbursements to appellants, and the motion to dismiss granted with $10 costs. The action--which purports to be one for the recovery of damages for personal injuries and to property arising from the collision of two automobiles on October 17, 1958--was commenced by the service of a summons in October, 1961, just before the three-year statute of limitations was to expire. A notice of appearance and a demand for a complaint were served on November 3, 1961. Thereafter, by stipulations, the time to serve the complaint was extended to December 27, 1961. In November, 1963, defendants moved to dismiss the action because plaintiffs had failed to serve a complaint. On the basis of affidavits submitted by plaintiffs to excuse the failure to serve a complaint because of the illness of one of plaintiffs and their attorney, an order was entered on December 30, 1963, denying defendants' motion but directing that plaintiffs serve the complaint within 10 days after publication of that determination. That direction was not complied with, and in May, 1964, defendants made another motion to dismiss. Plaintiffs obtained adjournments of that motion. On October 14, 1964, over the objection of defendants the motion was again adjourned, and plaintiffs on October 16, 1964 served a complaint which the attorneys for defendant promptly rejected. When defendants' motion to dismiss, made in May, 1964, was finally submitted to the Court on November 4, 1964, the motion was denied as 'academic by virtue of the service of the complaint.' In our opinion, plaintiffs have not satisfactorily explained the inordinate delay in serving a complaint in this action. Moreover, there was no adequate showing of any meritorious cause of action. It was, therefore, an improvident exercise of discretion to permit the service of a...
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