Gallagher v. Clafington, Inc.

Appellate Division of the Supreme Court of New York

Gallagher v. Clafington, Inc.

7 A.D.2d 627, 179 N.Y.S.2d 360, 1958 N.Y. App. Div. LEXIS 4388

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

DecidedNovember 5, 1958

StatusPublished

Cited by2 cases

This text of 7 A.D.2d 627 (Gallagher v. Clafington, 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

Gallagher v. Clafington, Inc., 7 A.D.2d 627, 179 N.Y.S.2d 360, 1958 N.Y. App. Div. LEXIS 4388 (N.Y. Ct. App. 1958).

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Opinion

Order conditionally granting motion to dismiss action for failure to prosecute modified, on the facts and in the exercise of discretion, to delete the condition and the motion granted, with $10 costs to defendant-appellant, with $20 costs and disbursements of the appeal to the appellant. There has been insufficient excuse presented for the repeated delays in this case, despite prodding by defendant. Moreover, while there is an affidavit by the plaintiff, it is completely devoid of the facts relating to the nature of the accident, the wrong [628]*628charged to defendant, or other circumstances which would establish merit to the claim. This court has repeatedly expressed its view that a plaintiff on a motion such as this has a substantial burden to excuse or justify delay and to establish by evidentiary facts the merits of the cause of action. (See Rist v. 234 East 33rd Corp., 4 A D 2d 867; Fischetti v. 242 East 19th St. Corp., 4 A D 2d 867; Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942; Friedlander v. Roxy Theatre, 204 Misc. 740, affd. 283 App. Div. 860.) Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and Bastow, JJ.

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Order conditionally granting motion to dismiss action for failure to prosecute modified, on the facts and in the exercise of discretion, to delete the condition and the motion granted, with $10 costs to defendant-appellant, with $20 costs and disbursements of the appeal to the appellant. There has been insufficient excuse presented for the repeated delays in this case, despite prodding by defendant. Moreover, while there is an affidavit by the plaintiff, it is completely devoid of the facts relating to the nature of the accident, the wrong [628]*628charged to defendant, or other circumstances which would establish merit to the claim. This court has repeatedly expressed its view that a plaintiff on a motion such as this has a substantial burden to excuse or justify delay and to establish by evidentiary facts the merits of the cause of action. (See Rist v. 234 East 33rd Corp., 4 A D 2d 867; Fischetti v. 242 East 19th St. Corp., 4 A D 2d 867; Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942; Friedlander v. Roxy Theatre, 204 Misc. 740, affd. 283 App. Div. 860.) Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and Bastow, JJ.

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Bluebook (online)

7 A.D.2d 627, 179 N.Y.S.2d 360, 1958 N.Y. App. Div. LEXIS 4388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-clafington-inc-nyappdiv-1958.

Opinion

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