Finke v. Commonwealth Insurance

276 A.D.2d 814

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1949
• Status: Published

Opinion

Memorandum: The cause of action arose on or about August 5, 1935. The action was commenced on July 27, 1936. By notice of motion dated July 26, 1948, defendant moved to dismiss the complaint because of plaintiff’s unreasonable neglect in prosecuting the action. Under the circumstances disclosed by the record we find that the denial of the motion was an erroneous exercise of the Special Term’s discretion. (See Wheeler v. Duell, 230 App. Div. 392; Kellner v. Kener, 216 App. Div. 244, and Wilkolaski v. Hanavan, 240 App. Div. 867, affg. 149 Misc. 838; see, also, People v. Smith Corp., 247 App. Div. 441, and Kessler v. Gottlieb, 226 App. Div. 825.) All concur. (The order denies defendant’s motion to dismiss plaintiff’s complaint, in an action under an insurance policy.) Present — Taylor, P. J., McCurn, Love, Kimball and Piper, JJ.