Castro v. Banister

42 Misc. 2d 387, 248 N.Y.S.2d 193, 1964 N.Y. Misc. LEXIS 2046

Opinion

Lewis W. Olliffe, J.

Defendant moves, pursuant to rule 3216 of the Civil Practice Law and Rules for an order dismissing the complaint herein for unreasonable neglect to prosecute. Issue was joined on April 10,1962. Shortly thereafter plaintiff was convicted of a felony and incarcerated in a State prison.

The motion came on for hearing on January 28,1964. Plaintiff was granted an opportunity to submit an affidavit of merits. The affidavit of merits alleges that among other injuries plaintiff was caused to undergo surgical removal of the left eye. Plaintiff since the argument of the motion has been released from prison.

Section 510 of the Penal Law provides for the suspension of civil rights during incarceration in a State prison. There is no doubt that the use of court process is a civil right. Section 10 of the Civil Rights Law expressly so provides. Yet a literal proscription of use by a convict of all civil process under any and all circumstances would eventuate in forfeiture of property rights of convicts. No such forfeitures are today among the penalties inflicted upon felons. It would be cruel and inhuman to deprive the plaintiff of his day in court. The plaintiff is now ready, willing and able to proceed and has offered to submit to any examination the defendant may desire. Defendant has failed to show that he has in any way been prejudiced. Motion denied.