Hutnik v. Brodsky

17 A.D.2d 808, 232 N.Y.S.2d 960, 1962 N.Y. App. Div. LEXIS 7435

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1962
• Status: Published

Opinion

Order, entered on May 2, 1962, denying motion by defendant to dismiss the action for failure to prosecute, unanimously reversed on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs. The plaintiff has failed to present a satisfactory excuse to justify the delay of 22 months in prosecuting this action. The reason presented for the delay was that the plaintiff was waiting for the defendant to keep a promise to arrange for plaintiff’s physical examination. But the responsibility for the diligent prosecution of an action rests with the plaintiff. Here, the plaintiff had adequate remedies under the Rule for Exchange of Medical Information. He could have effected prompt service of a notice fixing a time and place for the medical examination by the defendant, and, upon defendant’s failure to respond to such notice, could have proceeded to serve and file a note of issue. (New York County Supreme Court Trial Term Rules, rule XII, subds. 1, 6.) Concur — Botein, P. J., Breitel, Valente, McNally and Eager, JJ.