Opinion
March 16, 1960
Appeal from the Monroe Special Term.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Order unanimously reversed in the exercise of discretion, without costs of this appeal to any party, and motion granted, without costs. Memorandum: Two days before the expiration of the Statute of Limitations, plaintiff commenced his action by service of a summons. Notwithstanding a prompt notice of retainer and demand for the complaint, none was served. Six months later, defendants moved to dismiss the action for failure to prosecute. No cross motion was made by plaintiff to open the default although this was clearly the required procedure. (4 Carmody-Wait, New York Practice, p. 523; Blasser v. Morrisania Milk Co., 243 App. Div. 281; Walsh v. Ben Riley's Arrowhead Inn, 2 A D 714.) Plaintiff's attorney submitted an affidavit in opposition to the motion simply stating that the delay in serving the complaint was the result of the attorney's failure to secure a report from the plaintiff's attending physician. When the complaint was ultimately served it stated in general terms that the plaintiff's injuries were "fractures, bruises and sprains about his arm and body." The order granting plaintiff permission to serve the complaint was an improvident exercise of discretion. We have on several occasions expressed our concern about and disapproval of procrastination and dilatory tactics on the part of attorneys ( Goldstein v. Wickett, 3 A.D.2d 135; Walker v. Ferri, 5 A.D.2d 24). The order permitting the service of the complaint should be reversed in the exercise of discretion and the motion to dismiss the complaint granted.