Dowling v. Birnbaum

31 A.D.2d 927, 299 N.Y.S.2d 804, 1969 N.Y. App. Div. LEXIS 4491

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 1969
• Status: Published

Opinion

In an action to recover damages for wrongful death and conscious pain and suffering, defendant Lippman appeals from an order of the Supreme 'Court, Eings .County, dated September 13, 1968, which denied his motion to dismiss the complaint for failure to prosecute, pursuant to CPLR 3216. Order affirmed, with $10 costs and disbursements. We feel the extraordinary combination of misfortunes which affected plaintiff’s surviving attorney was responsible for the delay in prosecuting the action; and, absent any substantial prejudice to appellant, the interests of justice warranted the learned Special Term in denying the motion. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.