Barcelona v. Allis-Chalmers Distribution Service Corp.

89 A.D.2d 841, 453 N.Y.S.2d 19, 1982 N.Y. App. Div. LEXIS 17998

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 2, 1982
• Status: Published

Opinion

In a negligence action, inter alia, to recover damages for personal injuries, defendant Rayno Distributors, Inc., appeals, as limited by a “stipulation” dated December 17, 1981, from so much of an order of the Supreme Court, Kings County (Rader, J.), dated January 14, 1981, as denied its application to dismiss the complaints of plaintiffs Matteo Falcone, Mildred Fallo, Matthew Fallo, and Falcone Dairy Products, Inc., for failure to prosecute. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and the complaints of the aforesaid plaintiffs are dismissed as against defendant Rayno Distributors, Inc. The failure to provide an affidavit of merits or a reasonable excuse for the delay requires that the complaints be dismissed as against the plaintiffs concerned (see Fichera v City of New York, 79 AD2d 597; Wing v Chammas, 78 AD2d 887). Damiani, J. P., Gulotta, Rubin and Boyers, JJ., concur.