Fassari v. Lo Dolce

247 A.D. 758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1936
• Status: Published

Opinion

Order denying defendant’s motion to dismiss for lack of prosecution reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. There is no showing of merit by the plaintiff or his attorney, and, specifically, no showing that the automobile was being operated at the time of the accident with the express or implied consent of the defendant. The excuse presented for the delay of nearly three years is inadequate, and the plaintiff has not sustained the burden of showing no unreasonable neglect. (McGee v. Levy, 215 App. Div. 720.) Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.