Houck v. Golub Corp.

Appellate Division of the Supreme Court of New York

Houck v. Golub Corp.

217 A.D.2d 736, 628 N.Y.S.2d 1021, 1995 N.Y. App. Div. LEXIS 7603

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

DecidedJuly 6, 1995

StatusPublished

Cited by2 cases

This text of 217 A.D.2d 736 (Houck v. Golub Corp.) 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

Houck v. Golub Corp., 217 A.D.2d 736, 628 N.Y.S.2d 1021, 1995 N.Y. App. Div. LEXIS 7603 (N.Y. Ct. App. 1995).

Pincite

Opinion

White, J.

Appeal from an order of the Supreme Court (Hughes, J.), entered August 24,1994 in Albany County, which denied defendant’s motion to dismiss the complaint for failure to prosecute.

This appeal arises from Supreme Court’s denial of defendant’s motion to dismiss the complaint for plaintiffs’ failure to comply with a 90-day demand to file a note of issue (CPLR 3216). We affirm.

Supreme Court did not abuse its discretion in accepting plaintiffs’ proffered excuse of law office failure as there is no indication in the record that plaintiffs failed to diligently pursue this lawsuit or engaged in dilatory tactics (see, Jeune v O.T. Trans Mix Corp., 202 AD2d 640; Pastore v Golub Corp., [737]*737184 AD2d 827). Moreover, the lack of demonstrable prejudice to defendant caused by plaintiffs’ delay and the fact that plaintiffs’ verified complaint and bill of particulars indicates that their cause of action may have merit are important factors militating against the dismissal of this action (see, Amy L. M. v Board of Educ., 199 AD2d 477; Lichter v State of New York, 198 AD2d 687, 688).

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

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White, J.

Appeal from an order of the Supreme Court (Hughes, J.), entered August 24,1994 in Albany County, which denied defendant’s motion to dismiss the complaint for failure to prosecute.

This appeal arises from Supreme Court’s denial of defendant’s motion to dismiss the complaint for plaintiffs’ failure to comply with a 90-day demand to file a note of issue (CPLR 3216). We affirm.

Supreme Court did not abuse its discretion in accepting plaintiffs’ proffered excuse of law office failure as there is no indication in the record that plaintiffs failed to diligently pursue this lawsuit or engaged in dilatory tactics (see, Jeune v O.T. Trans Mix Corp., 202 AD2d 640; Pastore v Golub Corp., [737]*737184 AD2d 827). Moreover, the lack of demonstrable prejudice to defendant caused by plaintiffs’ delay and the fact that plaintiffs’ verified complaint and bill of particulars indicates that their cause of action may have merit are important factors militating against the dismissal of this action (see, Amy L. M. v Board of Educ., 199 AD2d 477; Lichter v State of New York, 198 AD2d 687, 688).

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

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Bluebook (online)

217 A.D.2d 736, 628 N.Y.S.2d 1021, 1995 N.Y. App. Div. LEXIS 7603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houck-v-golub-corp-nyappdiv-1995.

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