Majority
p. 996Clarence A. Frangione, as Administrator of the Estate of Jean M. Frangione, Deceased, Respondent, v Edward M. Cordasco, Appellant.
Order unanimously reversed, without costs, motion granted and action dismissed. Memorandum: The record in this case fails to disclose any sufficient excuse for the delay of more than 20 months in service of a
p. 997
complaint following a demand therefor. As we have stated in Huether v Blad ( 35 AD2d 774 , 775), the " 'one asking for excuse for great delay in prosecution comes with a heavy burden of explanation (Goldstein v Wickett, 3 AD2d 135 ; Walker v Ferri, 5 AD2d 24 ; Nicotera v Aliasso, 22 AD2d 758 ; Gino v Syracuse Mem. Hosp., 23 AD2d 964 ).’ (Hamilton v Dudley, 27 AD2d 701 )”. In Bamford v Kaunitz ( 37 AD2d 682 ) we said: "Excuses such as those offered by plaintiff, which have been characterized as 'Law Office Failures’, (Sortino v Fisher, 20 AD2d 25 , 29) 'have been weighed in the balance many times and found wanting.’ (Goldberg v Soifer, 30 AD2d 533 , 534.) The excuse of illness of the attorney of record is also inadequate when it does not appear that the condition existed throughout the period of delay (Alaimo v D &F Tr., 35 AD2d 776 ; Jerge v Fuglewicz, 36 AD2d 890 )”. The affidavit of merit submitted in opposition to the motion is unsatisfactory. Delia v Ramapo Gen. Hosp. ( 47 AD2d 522 ). On the record it was an improvident exercise of discretion to deny defendant’s motion to dismiss the action, made pursuant to CPLR 3012 (subd. [b]). (Appeal from order of Erie Special Term in malpractice action.) Present — Moule, J. P., Gardamone, Simons, Goldman and Del Vecchio, JJ.
Cases cited
- Huether v. Blad 35 AD2d 774 at 775 p. 997
- Goldstein v. Wickett 3 AD2d 135 p. 997
- Walker v. Ferri 5 AD2d 24 p. 997
- Sortino v. Fisher 20 AD2d 25 at 29 p. 997
- Goldberg v. Soifer 30 AD2d 533 at 534 p. 997
- Alaimo v. D & F Transit, Inc. 35 AD2d 776 p. 997
- Joey'O, Inc. v. Ring 36 AD2d 890 p. 997