Ostberg v. Warren Webster & Co.

Appellate Division of the Supreme Court of New York

Ostberg v. Warren Webster & Co.

27 A.D.2d 983, 278 N.Y.S.2d 979, 1967 N.Y. App. Div. LEXIS 4492

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 6, 1967

StatusPublished

This text of 27 A.D.2d 983 (Ostberg v. Warren Webster & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ostberg v. Warren Webster & Co., 27 A.D.2d 983, 278 N.Y.S.2d 979, 1967 N.Y. App. Div. LEXIS 4492 (N.Y. Ct. App. 1967).

Pincite

Opinion

Order unanimously reversed and motion granted, without costs. Memorandum: This negligence action to recover damages for personal injuries sustained in March, 1960 was commenced in January, 1962. Issue was joined in February and a bill of particulars was served in October, 1962. There had been no further activity by plaintiff for almost three and a half years, and then only after the defendant, on February 23, 1966, served a 45-day notice preliminary to a motion to dismiss under CPLR 3216, when plaintiff on April 4, 1966 served a notice to examine defendant. On April 18, 1966 defendant moved to dismiss on the grounds of general delay and for failure to file note of issue after demand. Plaintiff has submitted no affidavits in opposition to this motion; the record is therefore without support for the finding by Special Term that justifiable excuse for delay had been shown. The only delay explained was in failing to complete the examination before trial. The excuse given for this delay would not excuse the inordinate general delay in prosecution of the action, which justifies its dismissal. (Thomas v. Melbert Foods, 19 N Y 2d 216; Commercial Credit Corp. v. Lafayette, Lincoln-Mercury, 17 N Y 2d 367.) Furthermore, there was no showing of a meritorious cause of action by plaintiff as required by CPLR 3216. Mere reference to an unverified complaint does not meet this requirement, (cf. Sortino v. Fisher, 20 A D 2d 25.) Upon the record it was an improvident exercise of discretion to refuse to dismiss this 5-year-old action, commenced about 2 years after the accident. (Appeal from order of Monroe Special Term denying defendant’s motion to dismiss for failure to prosecute.) Present — Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.

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Order unanimously reversed and motion granted, without costs. Memorandum: This negligence action to recover damages for personal injuries sustained in March, 1960 was commenced in January, 1962. Issue was joined in February and a bill of particulars was served in October, 1962. There had been no further activity by plaintiff for almost three and a half years, and then only after the defendant, on February 23, 1966, served a 45-day notice preliminary to a motion to dismiss under CPLR 3216, when plaintiff on April 4, 1966 served a notice to examine defendant. On April 18, 1966 defendant moved to dismiss on the grounds of general delay and for failure to file note of issue after demand. Plaintiff has submitted no affidavits in opposition to this motion; the record is therefore without support for the finding by Special Term that justifiable excuse for delay had been shown. The only delay explained was in failing to complete the examination before trial. The excuse given for this delay would not excuse the inordinate general delay in prosecution of the action, which justifies its dismissal. (Thomas v. Melbert Foods, 19 N Y 2d 216; Commercial Credit Corp. v. Lafayette, Lincoln-Mercury, 17 N Y 2d 367.) Furthermore, there was no showing of a meritorious cause of action by plaintiff as required by CPLR 3216. Mere reference to an unverified complaint does not meet this requirement, (cf. Sortino v. Fisher, 20 A D 2d 25.) Upon the record it was an improvident exercise of discretion to refuse to dismiss this 5-year-old action, commenced about 2 years after the accident. (Appeal from order of Monroe Special Term denying defendant’s motion to dismiss for failure to prosecute.) Present — Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.

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Bluebook (online)

27 A.D.2d 983, 278 N.Y.S.2d 979, 1967 N.Y. App. Div. LEXIS 4492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ostberg-v-warren-webster-co-nyappdiv-1967.