Worme v. Merrill

Mario Pittoni, J.

Motion by the defendant William M. Merrill to dismiss the complaint for failure to prosecute and for a “ further order vacating and setting aside service of a summons and complaint upon Francis M. Merrill, named as a defendant, for failure to file proof of service as required by Section 52 of the Vehicle and Traffic Law ”. Cross motion for leave to file summons and complaint, nunc pro tunc.

There has been no appearance either generally or specially by Francis M. Merrill. Therefore the attorneys for the movant lack authority to make any motion in his behalf. The observation may be made that while late filing of proof of service may be permitted under section 52 of the Vehicle and Traffic Law (Michaud v. Lussier, 7 NY 2d 934), as this accident happened on September 24, 1955, service of the summons would have to be made on the Secretary of State prior to September 24, 1958 if Francis Merrill, a resident of this State, were absent for at least 30 days continuously (Vehicle and Traffic Law, § 52-a; Caruso v. Bard, 20 Misc 2d 887).

As to the delay in prosecuting the action against William Merrill no reasonable excuse is given for the delay since July 29, 1958 when issue was joined, nor is an affidavit of merits provided by the plaintiff. Under the authorities the motion to dismiss for failure to prosecute must be granted. (Grisafi v. Rubinstein, 8 A D 2d 742; Wakschal v. Century Estates, 10 A D 2d 891; Sigmund v. House of Cutlery, 7 A D 2d 565.)

Cross motion denied for (1) lack of service of the motion papers on Francis Merrill or his authorized representative, and (2) lack of proof that service on the Secretary of State was made prior to September 24, 1958.