Spira v. D. Harris 187th St. Market, Inc.

Appellate Division of the Supreme Court of New York

Spira v. D. Harris 187th St. Market, Inc.

18 A.D.2d 1063, 239 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3922

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

DecidedApril 18, 1963

StatusPublished

This text of 18 A.D.2d 1063 (Spira v. D. Harris 187th St. Market, Inc.) 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

Spira v. D. Harris 187th St. Market, Inc., 18 A.D.2d 1063, 239 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3922 (N.Y. Ct. App. 1963).

Pincite

Opinion

Order, entered on December 24, 1962, unanimously reversed on the law and on the facts, with $20 costs and disbursements to appellant, and the complaint dismissed with leave to the plaintiff to move to vacate the dismissal within 30 days of the entry of the order hereon, on proper papers, including an affidavit of merits, and upon the further condition that plaintiff consent to the transfer of the action to the Civil Court. In this personal injuries action, a motion to dismiss for failure to prosecute was made 18 months after issue was joined. Plaintiff’s present attorney admits that no affirmative action had been taken to place the cause on the calendar. The excuse is offered that the plaintiff’s original attorney was disbarred shortly after issue was joined, and that there was a period of six months in which the plaintiff was not represented, until present counsel was retained. Only an interval of approximately six months elapsed thereafter. While under these circumstances such an excuse might be considered a reasonable explanation for the delay, it has been repeatedly held that plaintiff’s failure to furnish an affidavit of merits must lead to a dismissal of the action. . (Rist v. 234 East 33rd Corp., 4 A D 2d 867.) The attorney for the plaintiff states it is his view that the Civil Court has ample jurisdiction to compensate plaintiff for any injuries suffered and it is his intention, if he prevails, to seek permission for removal to that court. Accordingly, in view of the foregoing, the order is reversed upon the aforementioned conditions. Settle order on notice. Concur — Breitel, J. P., McNally, Stevens, Eager and Steuer, JJ.

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Order, entered on December 24, 1962, unanimously reversed on the law and on the facts, with $20 costs and disbursements to appellant, and the complaint dismissed with leave to the plaintiff to move to vacate the dismissal within 30 days of the entry of the order hereon, on proper papers, including an affidavit of merits, and upon the further condition that plaintiff consent to the transfer of the action to the Civil Court. In this personal injuries action, a motion to dismiss for failure to prosecute was made 18 months after issue was joined. Plaintiff’s present attorney admits that no affirmative action had been taken to place the cause on the calendar. The excuse is offered that the plaintiff’s original attorney was disbarred shortly after issue was joined, and that there was a period of six months in which the plaintiff was not represented, until present counsel was retained. Only an interval of approximately six months elapsed thereafter. While under these circumstances such an excuse might be considered a reasonable explanation for the delay, it has been repeatedly held that plaintiff’s failure to furnish an affidavit of merits must lead to a dismissal of the action. . (Rist v. 234 East 33rd Corp., 4 A D 2d 867.) The attorney for the plaintiff states it is his view that the Civil Court has ample jurisdiction to compensate plaintiff for any injuries suffered and it is his intention, if he prevails, to seek permission for removal to that court. Accordingly, in view of the foregoing, the order is reversed upon the aforementioned conditions. Settle order on notice. Concur — Breitel, J. P., McNally, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

18 A.D.2d 1063, 239 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spira-v-d-harris-187th-st-market-inc-nyappdiv-1963.