Rutigliano v. Richter

Appellate Division of the Supreme Court of New York

Rutigliano v. Richter

23 A.D.2d 489, 255 N.Y.S.2d 741, 1965 N.Y. App. Div. LEXIS 4990

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

DecidedJanuary 26, 1965

StatusPublished

This text of 23 A.D.2d 489 (Rutigliano v. Richter) 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

Rutigliano v. Richter, 23 A.D.2d 489, 255 N.Y.S.2d 741, 1965 N.Y. App. Div. LEXIS 4990 (N.Y. Ct. App. 1965).

Pincite

Opinion

Order, entered on September 2, 1964, unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $30 costs and disbursements, and motion to dismiss action for lack of prosecution granted, with $10 costs. The incident giving rise to the alleged causes of action for false arrest and malicious prosecution occurred in 1957. The action was brought in 1958, and nothing was done to process the action toward final disposition other than to serve notices for examinations before trial (served in 1960 with examinations indefinitely postponed) and the attempted, albeit ineffective, service and filing by plaintiff of a note of issue in March, 1964. This motion to dismiss was made on April 30, 1964, and thereafter, on August 26, 1964, a note of issue was served and filed by plaintiff placing the action upon the calendar for trial. In view of the gross neglect in the prosecution of this action, without reasonable explanation for the delay and without an affidavit tending to show merit in the action, the action should be dismissed; and the belated filing of the note of issue does not preclude the dismissal. (See Mulinos v. Coliseum Constr. Corp., 22 A D 2d 163.) Concur — Botein, P. J., Yalente, McNally, Eager and Staley, JJ.

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Order, entered on September 2, 1964, unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $30 costs and disbursements, and motion to dismiss action for lack of prosecution granted, with $10 costs. The incident giving rise to the alleged causes of action for false arrest and malicious prosecution occurred in 1957. The action was brought in 1958, and nothing was done to process the action toward final disposition other than to serve notices for examinations before trial (served in 1960 with examinations indefinitely postponed) and the attempted, albeit ineffective, service and filing by plaintiff of a note of issue in March, 1964. This motion to dismiss was made on April 30, 1964, and thereafter, on August 26, 1964, a note of issue was served and filed by plaintiff placing the action upon the calendar for trial. In view of the gross neglect in the prosecution of this action, without reasonable explanation for the delay and without an affidavit tending to show merit in the action, the action should be dismissed; and the belated filing of the note of issue does not preclude the dismissal. (See Mulinos v. Coliseum Constr. Corp., 22 A D 2d 163.) Concur — Botein, P. J., Yalente, McNally, Eager and Staley, JJ.

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Bluebook (online)

23 A.D.2d 489, 255 N.Y.S.2d 741, 1965 N.Y. App. Div. LEXIS 4990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rutigliano-v-richter-nyappdiv-1965.