Cooper v. Schnabolk

283 A.D. 937, 130 N.Y.S.2d 606

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1954
• Status: Published

Opinion

Per Curiam.

This is an appeal from a denial of a motion to dismiss the complaint for failure to prosecute. We think the motion should have been granted.

The complaint, verified in June, 1950, asserts a claim for commissions accruing in June or July, 1944. There was thus a six-year delay in instituting the action.

Issue was joined by service of an answer in August, 1950. No note of issue was filed, however, or other action taken to bring the case to trial until January, 1954, when a recently substituted attorney for the plaintiff served a notice of examination before trial. Defendants then moved to dismiss the complaint for failure to prosecute.

No excuse whatever is given by plaintiff for the long delay in prosecuting the action. No affidavit or showing of merits is contained in the answering papers. The sole opposition to the motion is a perfunctory affidavit of plaintiff’s substituted attorney stating that he had only just been substituted and had been diligent in prosecuting the action since the substitution by serving a notice of examination before trial. Nothing is stated by way of explanation of the nearly ten-year accumulated delay up to that time.

The order appealed from should be reversed and the motion granted.

Peck, P. J., Dore, Callahan, Breitel and Bergan, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellants and the motion granted, and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs.