De Lisio v. Muto

30 A.D.2d 633, 290 N.Y.S.2d 460, 1968 N.Y. App. Div. LEXIS 3995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1968
• Status: Published

Opinion

Order unanimously reversed, without costs, motion granted and complaints dismissed. Memorandum: These four actions were instituted July 27, 1963 to recover damages for injuries sustained by the respective plaintiffs on April 14, 1962 when an automobile operated by defendant collided with a fire truck. Plaintiff De Lisio was the fire truck operator and plaintiffs Zulauf and Ferindino were his passengers. Plaintiff Romano was a passenger in defendant’s car. Issue was joined in each of the four actions by service of defendant’s answers on August 14, 1963. Bills of particulars in the Romano, Zulauf and Ferindino actions were served in October, 1963 and plaintiff De Lisio failed to serve a bill of particulars within the 20-day period allowed by a conditional preclusion order granted June 22,1965. On November 7, 1966 defendant served a written demand on plaintiffs’ attorney by certified mail requiring each plaintiff to resume prosecution of the respective actions and serve and file a note of issue in each action within 45 days after receipt of the demand in accordance with CPLR 3216. Plaintiffs defaulted in complying with the demand and 50 days after its receipt by plaintiffs’ attorney this motion was made to dismiss the actions. The motion was denied by the order appealed from which was entered on May 25, 1967. No proper or adequate statement was given by plaintiffs’ attorney to justify or explain the delay in any of the actions and none of the plaintiffs has supplied an affidavit of merit. In the exercise of appropriate discretion defendant’s motion to dismiss the actions should have been granted. (Appeal from order of Monroe Special Term denying motion to dismiss actions for failure to prosecute.) Present — Williams, P. J., Del Vecchio, Marsh and Henry, JJ.