Budesheim v. City of New York

In an action to recover damages for wrongful death and conscious pain and suffering, defendant appeals from an order of the Supreme Court, Kings County, dated July 18, 1972, which granted plaintiff’s motion to compel defendant to accept a complaint and denied defendant’s cross motion to dismiss the action for failure to timely serve a complaint. Order reversed, in the exercise of discretion, without costs; plaintiff’s motion denied; and defendant’s cross motion granted. To justify the 29-month delay in serving the complaint, plaintiff’s attorney asserts that his secretary inadvertently placed the case file with those marked “ closed ”. In our opinion, this excuse amounts to a “law-office failure”, which, standing alone, is insufficient to defeat a motion to dismiss an action for failure to timely serve a complaint or to constitute a cognizable explanation to excuse the delay (Eromberg v. 261 Broadway Estates, 38 A D 2d 752). Rabin, P. J., Hopkins, Shapiro, Christ and Brennan, JJ., concur.