Lavigne v. Allen

982 Staley, Jr., J. P., Cooke, Sweeney and Simons, JJ., concur; Greenblott, J., dissents and votes to reverse in the following memorandum: I dissent and vote to reverse. It is my feeling that the motion to dismiss under CPLR 3012 (subd. [b]) should have been granted since a reasonable excuse for delaying the service of the complaint after numerous demands thérefor, was not given (Wemple v. Cadoret, 983 29 A D 2d 1033). Respondent concedes “that the preparation of and serving of said complaint has been delayed for various and sundry reasons, none of which have a great deal of merit”. Furthermore, respondent failed to submit an affidavit of merits to justify the 14-month delay. (See Dolendi v. Maksiks, 30 A D 2d 687.) Nor do I agree that appellant waived his objection to the delay. Retention of a complaint while a motion is awaiting argument at Special Term, should not constitute a waiver. A further ground for dismissal is that the complaint failed to allege actual or constructive knowledge by the Sheriff of suicidal tendencies on the part of the deceased. (See Dalton v. State of New York, 34 A D 2d 605.) Under the circumstances, Special Term abused its discretion in denying the motion.