Heller v. Wildman

New York Supreme Court

Heller v. Wildman

28 Misc. 2d 682, 212 N.Y.S.2d 94, 1961 N.Y. Misc. LEXIS 3322

DecidedFebruary 27, 1961

StatusPublished

This text of 28 Misc. 2d 682 (Heller v. Wildman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Heller v. Wildman, 28 Misc. 2d 682, 212 N.Y.S.2d 94, 1961 N.Y. Misc. LEXIS 3322 (N.Y. Super. Ct. 1961).

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Opinion

Mario Pittoni, J.

Motion to dismiss for failure to prosecute is granted. Issue was joined on October 23, 1958. To successfully resist a motion of this character a plaintiff must submit papers demonstrating a reasonable excuse for failure to prosecute, supported by an affidavit of merit by the plaintiff. There is no affidavit of merit by the plaintiffs and the reasons for the delay lack merit. The affidavit by an attorney who has no personal knowledge of the facts of the case is entitled to no consideration. (Birch v. Wolper, 1 A D 2d 1028 [2d Dept.] ; Fiorello v. Towers Management Corp., 6 A D 2d 677 [1st Dept.] ; Sigmund [683]*683v. House of Cutlery, 7 A D 2d 565 [1st Dept.].) Plaintiffs’ belated, filing of a note of issue does not excuse their past neglect in prosecution of the action. (Lange v. Bagish, 285 App. Div. 833 [2d Dept.] ; Giovannucci v. Brooklyn & Richmond Ferry Co., Inc., 278 App. Div. 861 [2d Dept.] ; Lapidus v. City of New York, 4 A D 2d 752 [2d Dept.].)

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Mario Pittoni, J.

Motion to dismiss for failure to prosecute is granted. Issue was joined on October 23, 1958. To successfully resist a motion of this character a plaintiff must submit papers demonstrating a reasonable excuse for failure to prosecute, supported by an affidavit of merit by the plaintiff. There is no affidavit of merit by the plaintiffs and the reasons for the delay lack merit. The affidavit by an attorney who has no personal knowledge of the facts of the case is entitled to no consideration. (Birch v. Wolper, 1 A D 2d 1028 [2d Dept.] ; Fiorello v. Towers Management Corp., 6 A D 2d 677 [1st Dept.] ; Sigmund [683]*683v. House of Cutlery, 7 A D 2d 565 [1st Dept.].) Plaintiffs’ belated, filing of a note of issue does not excuse their past neglect in prosecution of the action. (Lange v. Bagish, 285 App. Div. 833 [2d Dept.] ; Giovannucci v. Brooklyn & Richmond Ferry Co., Inc., 278 App. Div. 861 [2d Dept.] ; Lapidus v. City of New York, 4 A D 2d 752 [2d Dept.].)

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Bluebook (online)

28 Misc. 2d 682, 212 N.Y.S.2d 94, 1961 N.Y. Misc. LEXIS 3322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heller-v-wildman-nysupct-1961.

Opinion

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