Liberty Mutual Insurance v. City of New York

James S. Brown, J.

Motion by plaintiff for an order pursuant to sections 257 and 263 of the Civil Practice Act, compelling defendant, city, to accept service of a complaint, previously served on the city, or, in the alternative, granting inquest.

The summons was served on January 2, 1958 and the city appeared on January 3,1958. The complaint was served on the city oh April 4, 1960, and returned by the city with the statement that no stipulation extending plaintiff’s time to serve a complaint had been requested by or .granted to plaintiff. No copy of the complaint is attached to the moving papers.

Section 257, under which plaintiff seeks to compel defendant to accept the complaint, provides that upon failure of plaintiff to serve a complaint, the defendant may apply to the court for dismissal thereof. It affords no relief to plaintiff if defendant does not avail himself of the provisions of this section. Section 263, also relied upon by plaintiff, requires a defendant to answer a complaint which has been served upon him, but presupposes service as required by section 257, to wit: within 20 days after demand thereof, or that it has been retained by defendant without objection to its late service.

Motion by plaintiff is in all respects denied without prejudice to an application, if so advised, to open its default, which application should be accompanied by a copy of the complaint and an affidavit of merits showing that plaintiff has a meritorious cause of action against defendant. The supporting papers on this motion state that “ The deponent merely [sic] believes that the plaintiff herein has a good cause of action in its claim, as to the defendant, The City of New York, since such defendant was the owner of the pier on which the explosion and fire in question occurred.”