Opinion
October 6, 1970
Order entered August 5, 1969 denying motion to dismiss this action for failure to timely serve a complaint reversed, on the law and facts and in the exercise of discretion, the motion granted, with costs, the complaint dismissed and the action severed as to defendants-appellants; and the appellants shall recover of the respondents $30 costs and disbursements of the appeal. No legal excuse was offered for the failure to serve a complaint more than three years after the occurrence of the accident and more than 13 months after the institution of the action. The offered excuse was misplacement of the file by plaintiffs' attorney. It has been repeatedly held that excuses for avoidable delay which lay the delay at the door of either the plaintiff or her lawyer are insufficient. ( Cruz v. National Auto Renting, 25 A.D.2d 633; Francisco v. Walgreen Eastern Co., 25 A.D.2d 681; Sortino v. Fisher, 20 A.D.2d 25, 29; Gallagher v. City of New York, 19 A.D.2d 623.) Moreover, the affidavit of merits does not factually sustain liability and, in addition, introduces for the first time a claim of improper lighting which is not made in the complaint. Whether or not plaintiff's injuries appear to be substantial, as stated in the minority memorandum, is wholly irrelevant.
Concur — Eager, J.P., Markewich and McNally, JJ.; Capozzoli and McGivern, JJ., dissent in the following memorandum by McGivern, J.: We are unable to say that it was an improvident exercise of discretion on the part of Special Term to refuse dismissal, under all the circumstances. Every situation of this character is different, and some latitude should be accorded the Justice at Special Term. As was said in Sortino v. Fisher ( 20 A.D.2d 25, 33): "there is no intention and there is no occasion to lay down rigid rules or particularize the circumstances controlling the determination of motions to dismiss for failure to prosecute." So, in the instant case, it may be true plaintiff's attorney was more somnolent than he should have been. Yet, the plaintiff's injuries appear substantial, there is an affidavit of merits, and defendant made no move of any vigilance, until after the complaint had been served and until after the Statute of Limitations would have expired. We find the situation somewhat unique and not within the fact patterns of any of the precedents cited by the majority. Accordingly, we find no improvident exercise of discretion and no abuse of discretion by Special Term, and we would affirm.