Opinion
November 9, 1970
In a negligence action to recover damages for personal injuries, defendant Farragut Gardens No. 5 Inc. appeals from an order of the Supreme Court, Kings County, dated October 30, 1969, which granted plaintiffs' motion to compel said defendant to accept service of a late complaint, and denied said defendant's cross motion to dismiss such complaint and to sever the action as to said defendant. Order reversed, on the facts, with $10 costs and disbursements, plaintiffs' motion denied and defendant's cross motion granted. A summons only was served on appellant on April 16, 1968. Appellant's notice of appearance and demand for service of a complaint were served on May 3, 1968, but the complaint was not served until September 17, 1969. It was returned as untimely. It is claimed that through an oversight plaintiffs' attorney's file of the case was placed in the wrong cabinet and the error was not found until "recently" because the associate attorney assigned to the case had been ill. This type of law office failure, the misplaced file, is an insufficient ground to excuse this delay ( Pellerin v. Groveville Corp., 34 A.D.2d 650; Sortino v. Fisher, 20 A.D.2d 25). The first illness claimed was six months after the complaint was due. A draft of the complaint had already been prepared and could have been served by another person in that office. The merits of the action are not sufficiently clear to override the delay and, under the totality of the circumstances, the lack of diligence should not be excused ( Pellerin v. Groveville Corp., supra). Christ, P.J., Martuscello, Latham, Kleinfeld and Brennan, JJ., concur.