Rodriguez v. Cotswold Manor, Inc.

31 A.D.2d 610, 295 N.Y.S.2d 771, 1968 N.Y. App. Div. LEXIS 2746

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 1968
• Status: Published

Opinion

—■ Order, entered on June 14, 1968, denying defendant’s renewed motion to dismiss for failure to prosecute, unanimously reversed on the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to defendant-appellant and motion granted. An earlier motion to dismiss for failure to prosecute, made after service of the requisite 45-day notice, was denied by Special Term, with leave to renew if plaintiff failed to place this action upon the calendar of the Civil Court immediately upon removal thereof to that court. The renewed motion was made when plaintiff failed to timely comply with the order of Special Term. No adequate excuse has been offered to justify the delay in the prosecution of this simple personal injury action prior to the service of the 45-day notice (Reilly v. Otis Elevator Co., 20 A D 2d 530), or to explain plaintiff’s failure to comply with said 45-day notice (Zentella v. New York City Tr. Auth., 29 A D 2d 937). In addition, the excuse offered for plaintiff’s failure to timely comply with the prior order of Special Term is wholly inadequate. Plaintiff’s continuous failure to diligently prosecute this action calls for a dismissal thereof. Appeal from order, entered on March 25, 1968, denying defendant’s motion to dismiss for failure to prosecute with leave to renew if the action was not placed on the calendar of the Civil Court immediately upon removal to that court, dismissed as moot in view of this court’s determination on [above] appeal without costs or disbursements. Concur — Eager, J. P., Capozzoli, Tilzer, MoGrivem and McNally, JJ.