Hart v. Sheridan

22 Misc. 2d 126, 202 N.Y.S.2d 356, 1960 N.Y. Misc. LEXIS 3221

• Court: New York Supreme Court
• Decided: April 7, 1960
• Status: Published

Opinion

Mario Pittoni, J.

Motion to dismiss the complaint against defendant, Lloyd Sheridan, for lack of diligent prosecution and for a severance granted.

This is an action to recover damages for personal injuries sustained on November 11,1958 while the plaintiff was a passenger in an automobile operated by defendant, Lloyd Sheridan, and in collision with the automobile of defendant, David Polinger. Issue was joined on June 6, 1959, but the plaintiff has failed to serve a bill of particulars as demanded by defendant, Lloyd Sheridan, or to take any other steps in prosecution of this action. The plaintiff has also failed to serve defendant, David Polinger.

The only papers submitted by the plaintiff to excuse the delay is an affidavit by his attorney setting forth various efforts to serve defendant, David Polinger, who could not be located. The affidavit is insufficient. The plaintiff has not shown a reasonable excuse for his delay. Defendant, David Polinger, could have been served by substituted service if he is a resident of the State, or by service on the Secretary of State pursuant to section 52 of the Vehicle and Traffic Law if he is a nonresident.

The plaintiff also neglected to submit an affidavit showing merit (Moebus v. Paul Tishman Co., 5 A D 2d 786 [2d Dept.]; Birch v. Wolper, 1 A D 2d 1028 [2d Dept.]), and the nature and extent of the claimed injuries. (Glasser v. Ritzer, 1 A D 2d 1041 [2d Dept.]; Gabrielsen v. Brookhattan Trucking Co., 250 App. Div. 861 [2d Dept.].)