Lapidus v. City of New York

4 A.D.2d 752, 164 N.Y.S.2d 829, 1957 N.Y. App. Div. LEXIS 4867

Opinion

In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order denying a motion to dismiss the complaint for lack of prosecution, pursuant to section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion granted. Respondents failed to present facts showing any reasonable excuse for their delay of about 32 months after joinder of issue in bringing the ease on for trial, even though they filed a note of issue after the motion papers had been served. The failure to notice the case for trial was willful and deliberate and was not based on a reasonable excuse. The denial of the motion was therefore an improvident exercise of discretion (Lange V. Bagish, 285 App. Div. 833; Maneino v. City of New York, 1 A D 2d 830; Dougherty v. Conti, 4 A D 2d 682). Nolan, P. J., Wenzel, Ughetta and Hallinan, JJ., concur; Kleinfeld, J., dissents and votes to affirm. (Levine v. City of New York, 3 A D 2d 682; Brown v. City of New York, 1 A D 2d 905; Brill v. County of Westchester, 4 A D 2d 690.)