Accident Victim Given Second Chance to Serve Defendants Where He Tried to Negotiate Settlement While Waiting Almost Too Long to Sue

Court: Supreme Court, Appellate Division, First Department, New York

Case: Nicodene v. Byblos Restaurant, Inc.

Date: Aug. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens accident attorney)

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Facts: We're dealing in technicalities here. Plaintiff was trying to sue the defendant restaurant for an accident. He claims that on March 11, 2007 he was injured when he sat on a chair and it collapsed. This plaintiff did not start his lawsuit until the time had almost expired. Then he was unable to properly serve the defendants with the papers that start a lawsuit -- a summons and complaint.

So this accident victim started his lawsuit on time by filing the papers with the court, but could not serve the defendants within the 120 days required by law. Why did his lawyers wait until the last second? There is no way to know from the wording of this decision.

Holding: The appeals court took pity on this accident victim and his lawyers, noting that the lawyer had at least tried to negotiate with the restaurant's insurance carrier and that the defendants would suffer no prejudice by giving this accident plaintiff another chance to serve the defendants with his lawsuit papers.

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