Rumrill v. Epting
| Decision Date | 10 June 1982 |
| Citation | 452 N.Y.S.2d 686,88 A.D.2d 1047 |
| Parties | Yvonne RUMRILL et al., as Parents and Natural Guardians of William Rumrill, an Infant, et al., Respondents, v. John EPTING, Jr., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
William A. Sekellick, Albany, for appellants.
Burke, Cavalier, Lyman & Shanley, Albany (Robert L. Sweeney, Albany, of counsel), for respondents.
Before MAHONEY, P. J., and SWEENEY, KANE, MIKOLL and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, entered April 29, 1981 in Albany County, which: (1) denied defendants' motion, pursuant to CPLR 3216, to dismiss the complaint for failure to prosecute, and (2) denied defendants' motion for summary judgment.
On January 8, 1978, the infant plaintiff, then 10 years old, and his mother, plaintiff Yvonne Rumrill, entered defendant Fay's Drug Store. The child separated from his mother and proceeded to the toy aisle where he picked up and handled a container of "Slime", a gelatinous substance. After defendant Epting, a security guard, observed the infant plaintiff handling the "Slime" for a short time, he escorted the child to the back room of the store. The infant was detained therein for a brief period until his mother was summoned and she was allegedly forced to sign a document purporting to release defendants from any liability before her son was let go.
On May 23, 1978, plaintiffs commenced this action wherein they sought recovery for: (1) false imprisonment of the infant plaintiff, and (2) alleged emotional trauma, disturbance and embarrassment suffered by the infant's mother as a result thereof. Issue was joined on July 6, 1978, and a bill of particulars was served by plaintiffs on August 22, 1978.
Thereafter, on October 8, 1979, defendants served upon plaintiffs a 90-day demand to file a note of issue pursuant to CPLR 3216. This demand was sent by regular mail rather than by registered or certified mail as required by CPLR 3216 (subd. par. ). Subsequently, defendants served by certified mail a second demand to file a note of issue, "in order to cure the irregularity of having the first demand served by ordinary mail". The second demand, dated January 9, 1980 and received on January 11, 1980, was also technically irregular in that it noticed a 45-day period for filing of the note of issue rather than the statutory period of 90 days mandated by the 1978 amendment to CPLR 3216 (see L.1978, ch. 4, § 1).
On January 16, 1980, plaintiffs' attorney served notices to examine defendants before trial, and defendants then served a cross notice to examine plaintiffs. On March 18, 1980, examinations before trial of defendants and the infant's parents were conducted. Next, plaintiffs brought a motion to compel further discovery and defendants cross-moved for disclosure, seeking an examination before trial of the infant plaintiff. Ultimately the motions were withdrawn and an examination before trial of the infant plaintiff was conducted on May 16, 1980.
After an additional seven months had passed, defendants moved, on December 15, 1980, to dismiss plaintiffs' complaint pursuant to CPLR 3216 and for summary judgment. Plaintiffs then filed a note of issue on January 2, 1981.
Special Term denied defendants' motion in its entirety and this appeal ensued. We conclude that Special Term's decision must be reversed insofar as it denied defendants' motion to dismiss pursuant to CPLR 3216.
In its decision, Special Term viewed the demand dated January 9, 1980, as invalid in that it required plaintiffs to serve and file a note of issue within 45 days, rather than within the statutorily mandated 90-day period. * We disagree and find the case of Smith v. City of Troy, 77 A.D.2d 691, 429 N.Y.S.2d 796, affd. 54 N.Y.2d 890, 444 N.Y.S.2d 918, 429 N.E.2d 425 to be controlling. In that case, this court held that an irregularity, such as occurred here, was not prejudicial and should be...
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...counsel was attempting to contact a potential witness does not provide an excuse for the substantial delay (see, Rumrill v. Epting, 88 A.D.2d 1047, 1048, 452 N.Y.S.2d 686), especially since plaintiff failed to either move to vacate the 90-day notice or move for an extension (see, Aquilino v......
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