Opinion
February 24, 1966
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Order unanimously reversed, without costs of this appeal to any party, and motion denied, without costs. Memorandum: The accident which is the subject of this action occurred on January 23, 1961. In August and November of 1961 the then attorneys for plaintiff wrote letters to defendants setting forth the claims for damages. Nothing further was done by plaintiff until January 17, 1963, six days prior to the running of the Statute of Limitations, when summons were served. Two weeks after such service defendants served notices of appearances and demands for the complaint. After plaintiff was in default for approximately one year and a half, defendants moved to dismiss the summons and plaintiff cross-moved to extend his time to serve a complaint. Defendants' motion was granted, but with leave to plaintiff to renew his motion upon papers showing a meritorious cause of action. Four months later plaintiff renewed his motion and it is from the order extending plaintiff's time in which to serve his complaint that this appeal is taken. The failure to serve a complaint more than 4 years after the accident and the complete neglect to serve a complaint for 18 months after service of defendants' demand is inexcusable. The plaintiff's gross delay in prosecuting his action forfeits his right to be relieved from his inaction and the extension granted by Special Term was an improvident exercise of discretion under the circumstances of this case.