Opinion
April 6, 1970
In a negligence action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Dutchess County, dated August 25, 1969, which granted plaintiffs' motion (1) to open their default in serving a complaint, (2) to vacate a prior determination to dismiss their complaint and (3) to enlarge their time to serve a complaint. Order reversed, on the law and the facts, without costs, and motion denied. In our opinion, plaintiffs' delay of over 18 months in serving their complaint was not justified by their attorney's excuse that "the file was lost". We have repeatedly held that such excuse is legally insufficient ( Morales v. City of New York, 29 A.D.2d 875; and cases cited therein). Plaintiffs' attorney deposed that the file was lost when an investigator, to whom it had been given, met with an automobile accident and the vehicle was towed away with the file in it to an undisclosed place, and that about a year thereafter the investigator located the "junked" vehicle and found the file, thereby enabling plaintiffs' attorney to serve the complaint four months later. The assertion made by plaintiffs' attorney that the did not have sufficient facts to draft the complaint until the file was "found" is patently without merit. A reading of the proposed complaint discloses nothing more than routine, form book allegations into which the attorney need only have inserted the names of the parties and the date and nature of the accident, all of which information was available during the 18 months of inaction here involved (cf. Houle v. Wilde, 22 A.D.2d 727). Moreover, were we to view the reason for the delay as somewhat outside the pale of the usual misplaced file situation, we would nevertheless be disposed to reverse and deny the motion. The totality of circumstances does not impress us as excusing the attorney's lack of diligence ( Sortino v. Fisher, 20 A.D.2d 25; Greenwald v. Zyvith, 23 A.D.2d 201). Hopkins, Acting P.J., Munder, Martuscello, Brennan and Benjamin, JJ., concur.