Johnson v. Moody's Investors Service

285 A.D. 966, 138 N.Y.S.2d 683, 1955 N.Y. App. Div. LEXIS 6317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1955
• Status: Published

Opinion

In an action to recover damages for injuries to person and property, and for medical expenses and loss of services, defendants appeal from an order denying their motion to dismiss the complaint for plaintiffs’ unreasonable neglect to prosecute the action. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Plaintiffs failed to present facts showing any reasonable excuse for their delay of more than twenty-six months after joinder of issue in bringing the cause on for trial. The denial of the motion was therefore an improper exercise of discretion (Giovannucci V. Brooklyn & Richmond Ferry Co., 278 App. Div. 861; Smith v. Schiller, 279 App. Div. 755; Fassett V. Valley Feed & Supply Co., 283 App. Div. 1081), even though the plaintiffs filed and served a note of issue after the notice of motion to dismiss had been served. (Giovannucci v. Brooklyn é Richmond Ferry Co., supra, and cases cited therein.) Wenzel, Acting P. J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.