Krell v. Pelham Syndicate Inc.

14 A.D.2d 845, 220 N.Y.S.2d 966, 1961 N.Y. App. Div. LEXIS 8045

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1961
• Status: Published

Opinion

Plaintiff did not demonstrate a reasonably substantial excuse for the 20 months’ delay in prosecuting the action. Settlement negotiations are in themselves an insufficient excuse. (See Polo v. City of New York, 13 A D 2d 726; Maizonet v. Lee Props., 11 A D 2d 667; cf. Fast v. Meenan Oil Co., 1 A D 2d 889; Trapani v. Samuels, 3 A D 2d 861.) Moreover, the papers disclose defendant’s refusal to settle the ease at least eight months before the motion to dismiss was made. Of course, defendant’s failure to be examined before trial is completely explained by the fact that plaintiff did not, either by notice or motion, attempt to examine the defendant. Hence, in view of the undue delay and plaintiff’s failure to show a satisfactory reason for such delay, the motion to dismiss should have been granted unconditionally. Concur — Botein, P. J., Valente, Stevens, Eager and Steuer, JJ.