Greener v. Great Atlantic & Pacific Tea Co.

285 A.D. 1177, 140 N.Y.S.2d 873, 1955 N.Y. App. Div. LEXIS 7064

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1955
• Status: Published

Opinion

In an action to recover damages for personal injuries as a consequence of alleged breach of warranty and negligence, the appeal is from an order denying defendants’ motion to dismiss the action for lack of prosecution on condition that plaintiff forthwith place the case on the calendar and move it for trial at each trial term until it is tried or otherwise disposed of by the court, and further providing that if plaintiff does not comply with said conditions, the action shall be dismissed on application of defendants. Order reversed, without costs, and motion granted, without costs. Plaintiff failed to offer a reasonable excuse for the delay of over seventeen years in bringing the case on for trial. In the circumstances, defendants are entitled to a dismissal of the action without condition, and it was an improvident exercise of discretion to deny them such relief. (Messing v. City of New York, 285 App. Div. 977.) Nolan, P. J., MacCrate, Schmidt, Murphy and Ughetta, JJ., concur.