(DOWNLOAD) "Norman Owczarkowski v. Leonard Pawlicki" by Supreme Court of New York * eBook PDF Kindle ePub Free
eBook details
- Title: Norman Owczarkowski v. Leonard Pawlicki
- Author : Supreme Court of New York
- Release Date : January 29, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
Memorandum: Defendant appeals from an order of Special Term which granted plaintiff's motion to vacate a prior order dismissing
plaintiff's action which was brought to recover damages sustained by him in a collision with defendant's automobile on December
7, 1963. In order to avoid the bar of the Statute of Limitations plaintiff's attorney delivered the summons for service on
defendant to the Sheriff of Erie County on December 7, 1966 (CPLR 203, subd. [b], par. 5). It was served on defendant on February
8, 1967 and he appeared on February 28, 1967. No complaint having been served, defendant moved, on April 5, 1967, to dismiss
the action. The motion was granted on April 21, 1967, and a copy of the order of dismissal was then served on plaintiff's
attorney as appears by an affidavit of service which is not rebutted by affidavit of the attorney who then represented plaintiff.
Plaintiff retained the attorney who now represents him on July 7, 1967, and on October 20, 1967, he served a verified complaint
on defendant's attorneys. On November 6, 1967 they returned the complaint with notice that the action had been dismissed.
After a delay of seven months plaintiff moved, on June 11, 1968, to vacate the April 21, 1967 order of dismissal. On January
24, 1969, five years after the accident, Special Term granted the order appealed from, vacating the order of dismissal and
granting permission to file a complaint. In our opinion this was an improvident exercise of discretion. Upon a motion by a
defaulting party to vacate an order of dismissal he must show a justifiable excuse for the default (Inserra v. Porto, 33 A.D.2d
1092; Cronin v. City of New York, 18 A.D.2d 995) and present evidentiary facts establishing that he has a meritorious cause
of action. (Hurley v. Reoux, 29 A.D.2d 789; Sortino v. Fisher, 20 A.D.2d 25.) There is no proof excusing plaintiff's failure
to serve the complaint and there is insufficient proof to show that he has a meritorious claim. There is no affidavit of the
attorney who represented plaintiff when the order of dismissal was granted. There is no affidavit containing evidentiary facts
establishing that plaintiff has a meritorious cause of action. Plaintiff's motion papers were insufficient to justify the
granting of the order. Disposition Order unanimously reversed, without costs, and motion to vacate prior order dismissing plaintiff's action denied.
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