Durand v. Gaslight Club, Inc.

Appellate Division of the Supreme Court of New York

Durand v. Gaslight Club, Inc.

27 A.D.2d 835, 281 N.Y.S.2d 971, 1967 N.Y. App. Div. LEXIS 4538

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

DecidedMarch 30, 1967

StatusPublished

This text of 27 A.D.2d 835 (Durand v. Gaslight Club, 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

Durand v. Gaslight Club, Inc., 27 A.D.2d 835, 281 N.Y.S.2d 971, 1967 N.Y. App. Div. LEXIS 4538 (N.Y. Ct. App. 1967).

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Opinion

Order entered June 22, 1966, granting motion to vacate the preclusion order on condition that a full bill of particulars is served within five days, and further granting motion to dismiss unless plaintiff file a note of issue and statement of readiness within 20 days, unanimously reversed, on the law and the facts, with $30 costs and disbursements to the appellant. The motion to dismiss is granted unconditionally, with $10 costs. Thus the branch of the appeal relating to the preclusion order .becomes academic. The delay herein was inordinate and not adequately explained. There was not only a failure to comply with the 45-day demand requirement of CPLR 3216 but also an impermissible general delay in the prosecution of the action. (Thomas v. Melbert Foods, 19 N Y 2d 216.) Even if the prior attorney’s neglect were excusable (which it is not, Walker v. Ferri, 5 A D 2d 24) the subsequent conduct of the case by the second attorney was not characterized by expedition. Concur — Botein, P. J., Stevens, McNally, McGivern and Witmer, JJ.

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Order entered June 22, 1966, granting motion to vacate the preclusion order on condition that a full bill of particulars is served within five days, and further granting motion to dismiss unless plaintiff file a note of issue and statement of readiness within 20 days, unanimously reversed, on the law and the facts, with $30 costs and disbursements to the appellant. The motion to dismiss is granted unconditionally, with $10 costs. Thus the branch of the appeal relating to the preclusion order .becomes academic. The delay herein was inordinate and not adequately explained. There was not only a failure to comply with the 45-day demand requirement of CPLR 3216 but also an impermissible general delay in the prosecution of the action. (Thomas v. Melbert Foods, 19 N Y 2d 216.) Even if the prior attorney’s neglect were excusable (which it is not, Walker v. Ferri, 5 A D 2d 24) the subsequent conduct of the case by the second attorney was not characterized by expedition. Concur — Botein, P. J., Stevens, McNally, McGivern and Witmer, JJ.

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Bluebook (online)

27 A.D.2d 835, 281 N.Y.S.2d 971, 1967 N.Y. App. Div. LEXIS 4538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durand-v-gaslight-club-inc-nyappdiv-1967.