Borreggine v. Di Ponzio

Order unanimously reversed in the exercise of discretion, without costs of this appeal to any party, and motion granted, without costs. Memorandum: Two days before the expiration of the Statute of Limitations, plaintiff commenced his action by service of a summons. Notwithstanding a prompt notice of retainer and demand for the complaint, none was served. Six months later, defendants moved to dismiss the action for failure to prosecute. No cross motion was made by plaintiff to open the default although this was clearly the required procedure. (4 Carmody-Wait, New York Practice, p. 523; Blasser…