Premo v. Cornell ( 1981 )

Appeal from an order of the Supreme Court at Special Term (Harvey, J.), entered April 1, 1981 in Franklin County, which denied defendants’ motion, made pursuant to CPLR 3012 (subd [b]), to dismiss the action for failure to serve a complaint and granted plaintiff an additional 20 days in which to do so. The motor vehicle accident giving rise to this personal injury action occurred on March 16, 1976. About a week before the Statute of Limitations was to expire, a summons, which defendants believed failed to comply with CPLR 305 (subd [b]), was served. Their motion to have the action dismissed on that ground was denied and that denial was affirmed (Premo v Cornell, 71 AD2d 223). A copy of this court’s order entered thereon was served on defendants’ counsel on March 10,1980. In the interim, while that appeal was pending, an amended summons had been- served and defendants had appeared and demanded a complaint, the service of which, by consent of counsel, was to be held in abeyance until disposition of the afore-mentioned appeal. By motion made returnable on March 25, 1981, more than one year after service of this court’s order, defendants again sought to have the action dismissed, this time because of plaintiff’s failure to serve her complaint. That plaintiff has a meritorious action is unchallenged. The delay here, however, is substantial and the excuse advanced for that delay, namely, that prompt prosecution of this action was inhibited because of injuries plaintiff suffered and medical treatment she was required to undergo as a result of being the victim of an intervening criminal assault, is not adequately documented. Absent a medical affidavit substantiating that plaintiff’s injuries and indisposition effectively prevented her from timely pressing this action, it must be dismissed (Caton v Schenectady Gazette, 82 AD2d 949; Glick v Flick Realty Corp., 20 AD2d 876; see Chodikoff v Troy Estates, 37 AD2d 670). Order reversed, on the law and the facts, without costs, and motion by defendants to dismiss action granted. Mahoney, P. J., Casey, Mikoll and Yesawich, Jr., JJ., concur.