Kriegsman v. Rosenfeld

• Decision Date: 06 October 1970
• Citation: 314 N.Y.S.2d 601,35 A.D.2d 693
• Parties: Irene KRIEGSMAN and Sol Kriegsman, Plaintiffs-Respondents, v. Clara ROSENFELD et al., Defendants, and Morton M. Rosenfeld, individually, and as Trustee, and H. Lawrence Herring, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 601

314 N.Y.S.2d 601

35 A.D.2d 693

Irene KRIEGSMAN and Sol Kriegsman, Plaintiffs-Respondents, v.Clara ROSENFELD et al., Defendants, and Morton M. Rosenfeldindividually, and as Trustee, and H. Lawrence Herring, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Oct. 6, 1970.

J. P. Carrozza, New York City, for plaintiffs-respondents.

J. J. Remer, New York City, for defendants-appellants.

Before EAGER, J.P., and CAPOZZOLI, McGIVERN, MARKEWICh anD mCNALLY, JJ.

PER CURIAM.

Order (Frank, J.) entered August 5, 1969 denying motion to dismiss this action for failure to timely serve a complaint reversed, on the law and facts and in the dismissed and discretion, the motion granted with costs, the complaint dismissed and the action severed as to defendants-appellants; and the appellants shall recover of the respondents $30 costs and disbursements of the appeal.

No legal excuse was offered for the failure to serve a complaint more than three years after the occurrence of the accident and more than thirteen months after the institution of the action.The offered excuse was misplacement of the file by plaintiffs' attorney.It has been repeatedly held that excuses for avoidable dalay which lay the delay at the door of either the plaintiff or her lawyer are insufficient.Cruz v. National Auto Renting, Inc., 25 A.D.2d 633, 267 N.Y.S.2d 996;Francisco v. Walgreen Eastern Co., Inc., 25 A.D.2d 681, 269 N.Y.S.2d 170;Sortino v. Fisher, 20 A.D.2d 25, 29, 245 N.Y.S.2d 186, 192;Gallagher v. City of New York, 19 A.D.2d 623, 241 N.Y.S.2d 66.Moreover, the affidavit of merits does not factually sustain liability and, in addition, introduces for the first time a claim of improper lighting which is not made in the complaint.Whether or not plaintiff's injuries appear to be substantial, as stated in the minority memorandum, is wholly irrelevant.

All concur except CAPOZZOLI and McGIVERN, JJ., who dissent in the following memorandum.

McGIVERN, Justice (dissenting).

We are unable to say that it was an improvident exercise of discretion on the part of Special Term to refuse dismissal, under all the circumstances.Every situation of this character is different, and some latitude should be accorded the Justice at Special Term.As was said in Sortino v. Fisher, 20 A.D.2d 25, p. 33, 245 N.Y.S.2d 186, p. 196: '* * * there is no intention and there is no occasion to lay down rigid rules or particularize the circumstances controlling the...