Nocella v. City of New York

• Decision Date: 18 March 1963
• Citation: 239 N.Y.S.2d 331,18 A.D.2d 1015
• Parties: Anthony NOCELLA, Respondent, v. The CITY OF NEW YORK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 331

239 N.Y.S.2d 331

18 A.D.2d 1015

Anthony NOCELLA, Respondent, v.The CITY OF NEW YORK, Appellant.

Supreme Court, Appellate Division, Second Department.

March 18, 1963.

Leo A. Larkin, CorporationCounsel, New York City, for appellant; Jos. A. Doran, New York City, of counsel.

Hartsell, Harrington & Jacobs, New York City, for respondent; Malcolm J. Hartsell, New York City, of counsel.

Before KLEINFELD, Acting P. J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injury, the defendant appeals from an order of the Supreme Court, Kings County, entered October 19, 1961, which granted plaintiff's motion to open his default in failing to serve a complaint within the time prsecribed (Civil Practice Act, § 257).

Order reversed, without costs, and motion denied.

The accident occurred on January 27, 1955.The action was commenced by the service of a summons on February 25, 1956.A notice of appearance was served by defendant on February 27, 1956.No complaint was served by plaintiff.On September 25, 1961plaintiff moved to open his default in failing to serve a complaint.

The explanation of plaintiff's counsel for the delay was that, shortly after service of the summons, the office of his firm had been moved and that, in the process of moving, the records of this case were inadvertently placed in a file of closed cases.Such explanation is insufficient to excuse the unreasonable delay in serving the complaint (Engle v. Yankee Realty Corp., 16 A.D.2d 811, 228 N.Y.S.2d 856;...