Pisano v. Joseph

20 A.D.2d 917, 1964 N.Y. App. Div. LEXIS 4007

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1964
• Status: Published

Opinion

In two companion actions for the dissolution of an alleged partnership and for an accounting, the respective defendants in each action appeal from an order of the Supreme Court, Queens County, dated October 15, 1963, which, as to each action: (1) granted the plaintiff’s motion to restore the action to the calendar for trial; opened plaintiff’s default; vacated the prior dismissal of the action under rule 302 of the former Rules of Civil Practice, and restored the action to the Trial Calendar for a specified date; and which (2) denied defendant’s cross motion to dismiss the action for lack of prosecution. Orders affirmed, without costs. Ho opinion. Beldoek, P. J., Kleinfeld, Hill and Rabin, JJ., concur; Ughetta, J., dissents and votes to reverse the orders and to deny the plaintiffs’ motions and to grant the defendants’ motions, with the following memorandum: The conceded inactivity for at least two years of each plaintiff with respect to the prosecution of her ease is in large part attributable to her own inexcusable neglect, and not to her claimed inability to obtain a new attorney in place of the original attorney. Under the circumstances, defendants’ motions to dismiss should have been granted unconditionally.