Emrick v. Paramount Restaurant, Inc.

6 A.D.2d 686, 174 N.Y.S.2d 327, 1958 N.Y. App. Div. LEXIS 5742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1958
• Status: Published

Opinion

Order so far as appealed from unanimously reversed, with $20 costs and disbursements to the appellant, and the plaintiff’s motion to vacate the dismissal and restore the action to the calendar and for related relief denied. The record in this case shows a history of more than five years of inactivity, procrastination and delay which does not commend itself to the exercise of the court’s discretion on this application to vacate the dismissal pursuant to rule 302 and to restore the case to the calendar. This court has warned repeatedly that the consequence of continued failure to follow the rules that govern the course of litigation will be dismissal of the action (Harrington v. Kaufman, 5 A D 2d 195; Lopez v. Vesce, 4 A D 2d 1032; Goldfarb v. Mallin, 3 A D 2d 735). Plaintiff was previously warned in this very case against lack of diligence and inattention to the rules. He has had to be prodded at every stage of the litigation, offering oversight and lack of knowledge as excuses for continued defaults. No additional facts were set forth on the motion for reconsideration to warrant a change from the original decision denying plaintiff’s application. Concur — Botein, P. J., Breitel, Frank, McNally and Stevens, JJ.