Rockwell v. Locker

20 A.D.2d 722, 247 N.Y.S.2d 554, 1964 N.Y. App. Div. LEXIS 4432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1964
• Status: Published

Opinion

In an action to recover damages for alleged slander (Action No. 1), defendant Locker appeals from so much of an order of the Supreme Court, Queens County, made February 5, 1963 on reargument, as adhered to its original decision conditionally denying said defendant’s motion to dismiss the complaint for failure to prosecute. Order, insofar as appealed from, reversed, with $10 costs and disbursements; defendant’s motion to dismiss the complaint in Action No. 1 granted; and complaint in said action dismissed. The proffered excuse that plaintiff in Action No. 1 was waiting for the conclusion of the pretrial proceedings in Action No. 2, to notice Action No. 1 for trial, is insufficient; the determination of Action No. 2 would in no way be dispositive of the issues in Action No. 1 (Grottano v. New York Herald Tribune, 13 A D 2d 638; Kellner v. Kener, 216 App. Div. 244). Moreover, plaintiff's affidavit is insufficient to demonstrate merit (Keating v. Smith, 20 A D 2d 141; Sortino v. Fisher, 20 A D 2d 25; Gallagher v. Clafington, Inc., 7 A D 2d 627). Kleinfeld, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.