Neyra y Alba v. Pelham Foods, Inc.

46 A.D.2d 760, 361 N.Y.S.2d 14, 1974 N.Y. App. Div. LEXIS 3601

Opinion

Order, Supreme Court, Bronx County, entered May 30, 1974, denying defendants-appellants’ motion and cross motion to dismiss the complaint for failure to prosecute, unanimously modified, on the law and the facts and in the exercise of discretion, to deny the motions on condition that a total of $250 ($125 to each of the two defendants-appellants) be paid personally by the attorneys for the plaintiff to the defendants-appellants and, as so modified, affirmed, without costs or disbursements. In the event such condition is not complied with, then the order is unanimously reversed, on the law and the facts and in the exercise of discretion, and the motions to' dismiss granted, without costs or disbursements. While the papers submitted in opposition to the motion to dismiss are far from satisfactory (ef. Ad Press v. Environmental Enterprises, 41 A D 2d 636, and cases cited therein), we nonetheless find that there was no intentional abandonment of the action nor any undue prejudice worked on the defendants by the delay incurred. Plaintiff, under these circumstances, should not be required to suffer the consequences of his attorneys’ misconduct (cf. Newell v. Lane, 45 A D 2d 704; Moran v. Bynar, 39 A D 2d 718). Concur — Nunez, J. P., Kupferman, Murphy, Lupiano and Lane, JJ. •