Sinder v. 345 Cypress Realty Corp.

• Decision Date: 26 May 1970
• Citation: 311 N.Y.S.2d 127,34 A.D.2d 777
• Parties: Rubin SINDER and Eva Sinder, Plaintiffs-Respondents, v. 345 CYPRESS REALTY CORP., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 127

311 N.Y.S.2d 127

34 A.D.2d 777

Rubin SINDER and Eva Sinder, Plaintiffs-Respondents, v. 345 CYPRESS REALTY CORP., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 26, 1970.

M. Solomon, for plaintiffs-respondents.

S. Goldfinger, New York City, for defendant-appellant.

Before CAPOZZOLI, J.P., and McGIVERN, NUNEZ, McNALLY and TILZER, JJ.

PER CURIAM.

Order entered October 20, 1969, denying defendant's motion to dismiss for failure to timely serve a complaint pursuant to CPLR 3012 (subd. (b)) and granting plaintiffs' motion to vacate plaintiffs' default in serving the same, unanimously reversed on the law and on the facts, without costs and without disbursements, and the action dismissed.

Under the chronology of this case, in response to a summons served upon it on May 7, 1967, the defendant appeared and demanded a copy of the complaint, on May 17, 1967; not receiving the same, defendant moved to dismiss on August 11, 1969. The excuse offered by the plaintiffs' attorney, namely inadvertence attendant upon the moving of his office, is unacceptable. Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186; Carroll v. Estron Realty Corp., 31 A.D.2d 903, 297 N.Y.S.2d 972. The fact that defendant may not have been prejudiced is immaterial. Coban v. Wil-Sade Realties, Inc., 19 A.D.2d 605, 241 N.Y.S.2d 146; Garcia v. Sentry-Norden Oil and Heating Co., Inc., 18 A.D.2d 789, 236 N.Y.S.2d 633. As to the added questionable claim of plaintiffs that they served a complaint on May 16, 1968, denied by the defendant, when no answer was interposed they 'would have been put on notice to make further inquiry'. Carroll v. Estron Realty Corp., supra. Nor is credence lent to this claim by plaintiffs' failure to move to enter a default against defendant for failure to serve a timely answer, pursuant to CPLR 3215(c).

In any event, there is also present herein a lack of prosecution and an absence of any reasonable excuse. Garcia v. Sentry-Norden Oil and Heating Co., Inc., supra; and Coban v. Wil-Sade Realties, Inc., supra.

Order filed.