Cataldo v. Buglass

51 A.D.2d 717, 379 N.Y.S.2d 154, 1976 N.Y. App. Div. LEXIS 11183

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1976
• Status: Published

Opinion

In an action inter alia to recover damages for breach of contract, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered June 18, 1975, in favor of the corporate defendants, upon an order of the same court, dated May 27, 1975, which (1) granted the separate motions of those defendants to dismiss for want of prosecution and (2) denied plaintiff’s cross motion for leave to amend the complaint. Judgment affirmed, with one bill of $50 costs and disbursements to respondents appearing separately and filing separate briefs. Plaintiff did not show a justifiable excuse for the delay in prosecution and a good and meritorious cause of action, as required by CPLR 3216 (see Brender v Berman, 37 AD2d 835). Issue was joined in 1969; summary judgment was granted in favor of the defendant association and certain of the individual defendants in 1970 and 1971, respectively, and affirmed by this court in each instance (Cataldo v Buglass, 36 AD2d 720, mot for lv to app den 29 NY2d 485; id. 42 AD2d 564, mot for lv to app den 33 NY2d 518). Plaintiff failed to resume prosecution and to file a note of issue within 45 days of service upon him of the separate demands therefor of the corporate defendants, made in 1974 and 1975. Rather, upon their motions to dismiss, plaintiff cross-moved to amend his complaint, alleging a new understanding of the parol evidence rule as set forth in a case decided in 1962. Such delay in seeking amendment precludes its being granted (see De Fabio v Nadler Rental Serv., 27 AD2d 931). Hopkins, Acting P. J., Latham, Christ, Titone and Hawkins, JJ., concur.