Sammons v. Freer

• Decision Date: 16 February 1984
• Citation: 99 A.D.2d 896,472 N.Y.S.2d 491
• Parties: Janet A. SAMMONS, Individually and as Administratrix of the Estate of Edwin H. Sammons, Deceased, Respondent, v. Robert FREER, Doing Business as Hideaway Camp, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 491

472 N.Y.S.2d 491

99 A.D.2d 896

Janet A. SAMMONS, Individually and as Administratrix of the Estate of Edwin H. Sammons, Deceased, Respondent, v.Robert FREER, Doing Business as Hideaway Camp, Appellant.

Supreme Court, Appellate Division Third Department.

Feb. 16, 1984.

Curran & Basch, Kingston (Eli B. Basch, Kingston, of counsel) for appellant.

Schleider, Dupee & Madison, Goshen (James R. McCarl of counsel), for respondent.

Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered January 18, 1983 in Ulster County, which granted plaintiff's motion compelling defendant to accept service of the complaint.

After defendant refused to accept service of plaintiff's complaint, which was not served until some 23 months after defendant made a demand for the complaint, plaintiff sought an order compelling defendant to accept service of the complaint.Plaintiff's attorney affirmed that the complaint had been untimely served (seeCPLR 3012, subd. [b] ) because his investigator mislaid the file until shortly before the preparation and service of the complaint.Special Term, in its discretion, granted plaintiff's motion, noting that the motion was essentially one for an extension of time under CPLR 2004 to serve a complaint and that courts enjoyed a broader range of discretion where, as here, no motion to dismiss had been brought.This appeal by defendant followed.

Even if Special Term did not abuse its discretion in forgiving the 23-month delay in the service of the complaint due to law office failure (seeCPLR 2005), reversal is nonetheless required.The Court of Appeals has required that "[o]nce the time to serve a complaint has expired, a plaintiff must provide the court with an affidavit of merit or a verified complaint in lieu thereof"(A & J Concrete Corp. v. Arker, 54 N.Y.2d 870, 872, ...