Munroe v. Vaskowitz

6 Misc. 2d 673, 167 N.Y.S.2d 266, 1957 N.Y. Misc. LEXIS 3058

Opinion

Cyril J. Brown, J.

This is a motion by the defendants for an order dismissing the complaint herein for failure by the plaintiffs diligently to prosecute the action. Issue was joined in September, 1955 and a bill of particulars was served by the plaintiffs in October of that year. There has been no examination before trial and the papers do not disclose that any settlement negotiations have been or are pending. The only explanation given for the plaintiffs’ delay is a statement by their attorney to the effect that the delay was due to a change in personnel in his office. There is no statement that he intends diligently to prosecute the action nor is there submitted any affidavit of merit by either of the plaintiffs. Both of these elements are essential in order for the plaintiffs to prevail in their opposition to this motion (Davis v. Cunard S. S. Co., 284 App. Div. 1036; Cooper v. Schnabolk, 283 App. Div. 937). Where no satisfactory explanation is given for the delay, the court is not authorized to exercise its discretion in the plaintiff’s favor (Armstrong v. Star Co., 154 App. Div. 320; Fischer v. Tushnett, 256 App. Div. 833). Accordingly, the motion to dismiss is granted.

Submit order.