Cohen v. First National City Bank

In an action, inter alia, to recover damages for breach of contract and breach of warranty, defendant appeals from an order of the Supreme Court, Nassau County, entered October 29, 1979, which (1) denied defendant’s motion to dismiss plaintiff’s action for failure to timely serve a complaint, and (2) granted plaintiff’s cross motion to compel defendant to accept the complaint. Order reversed, on the law, with $50 costs and disbursements, motion granted and cross motion denied. Special Term abused its discretion in denying defendant’s motion to dismiss the complaint. Plaintiff’s justification for the nine-month delay in serving the complaint (after the expiration of the two-month extension agreed to by defendant), that he encountered difficulty in obtaining the information needed to properly draft a complaint, was insufficient in light of the fact that he had enough information at the time the summons was served to assert the general allegations he eventually asserted in his untimely served complaint. In addition, there was no basis in the record for Special Term’s conclusion that defendant was not "unequivocally opposed to settlement negotiations.” Hopkins, J. P., Titone, Mangano and Rabin, JJ., concur.