Bloomfield v City of New York

Bloomfield v City of New York 2007 NY Slip Op 02487 [38 AD3d 395] March 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Ed Bloomfield, Appellant,
v
City of New York, Respondent.

—[*1] Marshall E. Bloomfield, Bronx (Michael P. Bloomfield of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered January 4, 2006, which denied plaintiff's motion for an order directing the Clerk to accept a late filing of summons and complaint and assign an index number, unanimously affirmed, without costs.

This action was commenced in 1988, and is thus governed by former CPLR 306-a (c) (see Schaffrick v City of Kingston, 217 AD2d 892 [1995]), under which the court would issue a nunc pro tunc order when timely filing had not been made (see Metropolitan Prop. & Cas. Ins. Co. v Roosevelt, 154 Misc 2d 336, 337 [1993]; Weinstein-Korn-Miller, NY Civ Prac ¶ 306-a.01). However, plaintiff let more than 17 years go by before filing his motion in 2005. This extensive delay in prosecuting the action was prejudicial to defendant, providing a proper basis to preclude plaintiff from filing the summons and complaint and proceeding with the litigation (see Gotay v Breitbart, 14 AD3d 452 [2005]; see also Rodriguez v Middle Atl. Auto Leasing, 122 AD2d 720, 723 [1986], appeal dismissed 69 NY2d 874 [1987]). Having properly denied the motion, the court cannot be faulted for dismissing the action in recognition of the inevitability of this consequence of the denial of the motion.

We have considered plaintiff's remaining arguments and find them without merit. Concur—Friedman, J.P., Nardelli, Sweeny, McGuire and Malone, JJ.