Greenwald v. Zyvith
| Decision Date | 10 May 1965 |
| Parties | Arwin GREENWALD and Marion Adkins, Appellants, v. Frank M. ZYVITH, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Alan Kahn, New York City, for appellant.
Walter C. Marshall, Lynbrook, for respondent; William T. Ryan, New York City, of counsel.
Before BELDOCK, P. J., and UGHETTA, CHRIST, BRENNAN and HOPKINS, JJ.
In a negligence action to recover damages for injury to person and property, the plaintiffs appeal from an order of the Supreme Court, Nassau County, which denied their motion to vacate a prior order and judgment of that court, dismissing plaintiffs' action for failure to serve a complaint.
In May, 1960 plaintiffs suffered personal injuries and other damages when an automobile in which they were passengers was struck in the rear by defendant's car. Plaintiffs retained an attorney whom we shall call the 'attorney of record.' He failed to obtain a settlement from defendant's insurer and referred the matter to another attorney whom we shall call 'trial counsel.' In December, 1961 trial counsel caused a summons to be served; and in the same month defendant served a notice of appearance. Trial counsel thereafter attempted, unsuccessfully, to settle the action. In May, 1962 trial counsel sent plaintiffs a complaint which plaintiffs verified and returned to him. The complaint, however, was never served.
In September, 1963 defendant moved to dismiss the action because of plaintiffs' failure to serve a complaint. Trial counsel obtained three adjournments of defendant's motion. On the final adjourned day, however, such counsel failed to appear in person or to file papers in opposition. In December, 1963 defendant's motion to dismiss was granted; and in January, 1964 judgment was entered dismissing the action. In September, 1964 the attorney of record informed the plaintiffs that their complaint had not been served and that the action had been dismissed.
In December, 1964 the attorney of record moved to vacate the order and judgment of dismissal. In support of the motion, trial counsel candidly alleged that he had negligently failed to serve the complaint and was unable to offer any explanation for his conduct. Trial counsel further admitted having repeatedly lied to the attorney of record concerning the progress of the action, as follows:
'[The attorney of record] had absolutely no knowledge of the default on the aforesaid motion and as a matter of fact, was advised by me that the motion had been denied.
'[The attorney of record] continued to make repeated inquiries of me with regard to this matter and I persisted in my refusal to meet with [him] or speak with him regarding this case.
'Finally at [the attorney of record's] insistence I met with him at his office during the latter part of September, 1964, and then, for the first time, told him the truth of what had transpired with regard to this file.'
In opposition to plaintiffs' motion to vacate the above order and judgment, defendant's counsel alleged that his records did not show that trial counsel represented the plaintiffs. In addition, his records revealed that his September, 1963 motion, as well as copies of the subsequent order and judgment of dismissal, had been served by mail on the attorney of record.
In our opinion, Special Term's order denying plaintiffs' motion should be affirmed. Plaintiffs failed to establish a reasonable excuse or justification for their delay in serving their complaint (Keating v. Smith, 20 A.D.2d 141, 245 N.Y.S.2d 909). Such delay on the part of a plaintiff's attorney of record or trial counsel is and should be imputed to the plaintiffs. If the rule were otherwise, plaintiffs would rarely suffer a dismissal. It would be the very unusual case where the...
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