Roe v. Kurkhill

Appellate Division of the Supreme Court of New York

Roe v. Kurkhill

6 A.D.2d 716, 174 N.Y.S.2d 573, 1958 N.Y. App. Div. LEXIS 5888

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

DecidedMay 19, 1958

StatusPublished

This text of 6 A.D.2d 716 (Roe v. Kurkhill) 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

Roe v. Kurkhill, 6 A.D.2d 716, 174 N.Y.S.2d 573, 1958 N.Y. App. Div. LEXIS 5888 (N.Y. Ct. App. 1958).

Pincite

Opinion

In an action to recover damages for breach of contract, and for other relief, the appeal is from an order denying appellants' motion to dismiss the complaint for lack of diligent prosecution. Order reversed, with $10 costs and disbursements, and motion [717]*717granted, without costs. Respondent failed to present a reasonable excuse for the delay of over five years in bringing the action on for trial and failed to present facts showing merit in his action. The denial of the motion was therefore an improvident exercise of discretion (Cooperman v. Princeton Realty Corp., 3 A D 2d 850; Moebus v. Paul Tishman Co., 5 A D 2d 786). Furthermore, the action having been marked off the calendar and not restored within one year thereafter is to be deemed abandoned and the complaint dismissed for failure to prosecute (Rules Civ. Prac., rule 302). Nolan, P. J., Wenzel, Beldock, Murphy and Hallinan, JJ., concur.

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In an action to recover damages for breach of contract, and for other relief, the appeal is from an order denying appellants' motion to dismiss the complaint for lack of diligent prosecution. Order reversed, with $10 costs and disbursements, and motion [717]*717granted, without costs. Respondent failed to present a reasonable excuse for the delay of over five years in bringing the action on for trial and failed to present facts showing merit in his action. The denial of the motion was therefore an improvident exercise of discretion (Cooperman v. Princeton Realty Corp., 3 A D 2d 850; Moebus v. Paul Tishman Co., 5 A D 2d 786). Furthermore, the action having been marked off the calendar and not restored within one year thereafter is to be deemed abandoned and the complaint dismissed for failure to prosecute (Rules Civ. Prac., rule 302). Nolan, P. J., Wenzel, Beldock, Murphy and Hallinan, JJ., concur.

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Bluebook (online)

6 A.D.2d 716, 174 N.Y.S.2d 573, 1958 N.Y. App. Div. LEXIS 5888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roe-v-kurkhill-nyappdiv-1958.