Frangione v. Cordasco

Order unanimously reversed, without costs, motion granted and action dismissed. Memorandum: The record in this case fails to disclose any sufficient excuse for the delay of more than 20 months in service of a 997 complaint following a demand therefor. As we have stated in Huether v Blad (35 AD2d 774, 775), the " 'one asking for excuse for great delay in prosecution comes with a heavy burden of explanation (Goldstein v Wickett, 3 AD2d 135; Walker v Ferri, 5 AD2d 24; Nicotera v Aliasso, 22 AD2d 758; Gino v Syracuse Mem. Hosp., 23 AD2d 964).’ (Hamilton v Dudley, 27 AD2d 701)”. In Bamford v Kaunitz (37 AD2d 682) we said: "Excuses such as those offered by plaintiff, which have been characterized as 'Law Office Failures’, (Sortino v Fisher, 20 AD2d 25, 29) 'have been weighed in the balance many times and found wanting.’ (Goldberg v Soifer, 30 AD2d 533, 534.) The excuse of illness of the attorney of record is also inadequate when it does not appear that the condition existed throughout the period of delay (Alaimo v D &F Tr., 35 AD2d 776; Jerge v Fuglewicz, 36 AD2d 890)”. The affidavit of merit submitted in opposition to the motion is unsatisfactory. Delia v Ramapo Gen. Hosp. (47 AD2d 522). On the record it was an improvident exercise of discretion to deny defendant’s motion to dismiss the action, made pursuant to CPLR 3012 (subd. [b]). (Appeal from order of Erie Special Term in malpractice action.) Present — Moule, J. P., Gardamone, Simons, Goldman and Del Vecchio, JJ.