Reilly v. Otis Elevator Co.

Appellate Division of the Supreme Court of New York

Reilly v. Otis Elevator Co.

20 A.D.2d 530, 245 N.Y.S.2d 305, 1963 N.Y. App. Div. LEXIS 2732

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

DecidedDecember 12, 1963

StatusPublished

This text of 20 A.D.2d 530 (Reilly v. Otis Elevator 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

Reilly v. Otis Elevator Co., 20 A.D.2d 530, 245 N.Y.S.2d 305, 1963 N.Y. App. Div. LEXIS 2732 (N.Y. Ct. App. 1963).

Pincite

Opinion

Order, entered on October 1, 1963, denying the motion of defendant S. S. Silberblatt, Incorporated, to dismiss the complaint for failure of prosecution, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, and the motion granted, with $10 costs. The accident occurred August 3, 1960; action commenced November 30, 1960; issue joined February 1,1961; .bill of particulars demanded February 1,1961 and not served until November 13, 1961; examinations before trial were held and completed June 28, 1962; and nothing further was done to prosecute the action until the instant motion to dismiss was made returnable August 27, 1963, more than a year after the examinations had been completed. The alleged excuse that the examinations before trial were not returned to plaintiff’s attorney for a considerable period of time is not borne out by the record and the vague allegations with reference to settlement negotiations do not constitute a reasonable excuse for the delay. Plaintiff’s willingness to transfer the action to the Civil Court was prompted by defendant-appellant’s motion to dismiss and does not constitute a valid excuse for the delay. (See Sortino v. Fisher, 20 A D 2d 25.) Concur— Breitel, J. P., Rabin, Valente, McNally and Steuer, JJ.

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Order, entered on October 1, 1963, denying the motion of defendant S. S. Silberblatt, Incorporated, to dismiss the complaint for failure of prosecution, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, and the motion granted, with $10 costs. The accident occurred August 3, 1960; action commenced November 30, 1960; issue joined February 1,1961; .bill of particulars demanded February 1,1961 and not served until November 13, 1961; examinations before trial were held and completed June 28, 1962; and nothing further was done to prosecute the action until the instant motion to dismiss was made returnable August 27, 1963, more than a year after the examinations had been completed. The alleged excuse that the examinations before trial were not returned to plaintiff’s attorney for a considerable period of time is not borne out by the record and the vague allegations with reference to settlement negotiations do not constitute a reasonable excuse for the delay. Plaintiff’s willingness to transfer the action to the Civil Court was prompted by defendant-appellant’s motion to dismiss and does not constitute a valid excuse for the delay. (See Sortino v. Fisher, 20 A D 2d 25.) Concur— Breitel, J. P., Rabin, Valente, McNally and Steuer, JJ.

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Bluebook (online)

20 A.D.2d 530, 245 N.Y.S.2d 305, 1963 N.Y. App. Div. LEXIS 2732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reilly-v-otis-elevator-co-nyappdiv-1963.