De Long Corp. v. J. Rich Steers, Inc.

Appellate Division of the Supreme Court of New York

De Long Corp. v. J. Rich Steers, Inc.

10 A.D.2d 705, 198 N.Y.S.2d 134, 1960 N.Y. App. Div. LEXIS 10889

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 29, 1960

StatusPublished

This text of 10 A.D.2d 705 (De Long Corp. v. J. Rich Steers, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

De Long Corp. v. J. Rich Steers, Inc., 10 A.D.2d 705, 198 N.Y.S.2d 134, 1960 N.Y. App. Div. LEXIS 10889 (N.Y. Ct. App. 1960).

Pincite

Opinion

Orders unanimously reversed on the law and in the exercise of discretion, with $20 costs and disbursements on each appeal, and the motions granted, with $10 costs on each motion, but with leave to plaintiff to move to vacate the dismissal upon proper papers including an affidavit of merits by the party plaintiff. The separate appeals of the defendants from the orders of Special Term, which denied defendants’ motion to dismiss the complaints for failure to prosecute, are considered together for reasons of convenience. In this action, which charges wrongful inducement to breach an employment contract and wrongful utilization of trade secrets and confidential information obtained from a former employee of the plaintiff, issue was joined in October and November, 1956. Further proceedings were delayed pending the outcome of a prior action brought by the plaintiff against its former employee, which action has' now been determined. In light of this record, the nature of the action, and the nature of the Federal action referred to, it may well be that the inaction or delay could be excused. The plaintiff, however, may not be relieved of its responsibility to file the required affidavit of merits. We have repeatedly held that a failure to prosecute requires the dismissal of an action in the absence of a showing of merits (Barnett Co. v. St. Paul Fire & Mar. Ins. Co., 7 A D 2d 897; Rist v. 234 East 33rd Corp., 4 A D 2d 867; Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942). Concur — Breitel, J. P., Rabin, M. M. Frank, McNally and Stevens, JJ.

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Orders unanimously reversed on the law and in the exercise of discretion, with $20 costs and disbursements on each appeal, and the motions granted, with $10 costs on each motion, but with leave to plaintiff to move to vacate the dismissal upon proper papers including an affidavit of merits by the party plaintiff. The separate appeals of the defendants from the orders of Special Term, which denied defendants’ motion to dismiss the complaints for failure to prosecute, are considered together for reasons of convenience. In this action, which charges wrongful inducement to breach an employment contract and wrongful utilization of trade secrets and confidential information obtained from a former employee of the plaintiff, issue was joined in October and November, 1956. Further proceedings were delayed pending the outcome of a prior action brought by the plaintiff against its former employee, which action has' now been determined. In light of this record, the nature of the action, and the nature of the Federal action referred to, it may well be that the inaction or delay could be excused. The plaintiff, however, may not be relieved of its responsibility to file the required affidavit of merits. We have repeatedly held that a failure to prosecute requires the dismissal of an action in the absence of a showing of merits (Barnett Co. v. St. Paul Fire & Mar. Ins. Co., 7 A D 2d 897; Rist v. 234 East 33rd Corp., 4 A D 2d 867; Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942). Concur — Breitel, J. P., Rabin, M. M. Frank, McNally and Stevens, JJ.

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Bluebook (online)

10 A.D.2d 705, 198 N.Y.S.2d 134, 1960 N.Y. App. Div. LEXIS 10889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-long-corp-v-j-rich-steers-inc-nyappdiv-1960.