Travelers Insurance v. Fink

Appellate Division of the Supreme Court of New York

Travelers Insurance v. Fink

6 A.D.2d 681, 174 N.Y.S.2d 105, 1958 N.Y. App. Div. LEXIS 5714

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

DecidedMay 27, 1958

StatusPublished

This text of 6 A.D.2d 681 (Travelers Insurance v. Fink) 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

Travelers Insurance v. Fink, 6 A.D.2d 681, 174 N.Y.S.2d 105, 1958 N.Y. App. Div. LEXIS 5714 (N.Y. Ct. App. 1958).

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Opinion

Per Curiam.

We find no abuse of discretion on the part of the Special Term in refusing to dismiss the complaint unconditionally for lack of prosecution. The order appealed from should, therefore, be affirmed. In so holding [682]*682we do not overlook our recent determination in Hardware Mut. Cas. Co. v. Rosenberg (3 A D 2d 988) but consider that case clearly distinguishable on the facts. There, the opposing affidavit contained nothing to excuse the delay, beyond the bare statement that there had been a substitution of attorneys and that those attorneys had acted as expeditiously as circumstances permitted. Here, however, the papers submitted in opposition show facts which we consider clearly sufficient to justify a finding by the Special Term that there was a reasonable excuse for the delay. In the circumstances, there is no basis for interference with the discretion exercised.

Moreover, it may be noted that in the present ease the motion to dismiss was not made until two days after the plaintiff had served its bill of particulars, whereas in Hardware Mutual the plaintiff was alerted to action only after the motion to dismiss had been made.

The order should be affirmed, with $20 costs and disbursements to the plaintiff-respondent.

Botein, P. J., Rabin, McNally, Stevens and Bergan, JJ., concur.

Order unanimously affirmed, with $20 costs and disbursements to the respondent.

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Per Curiam.

We find no abuse of discretion on the part of the Special Term in refusing to dismiss the complaint unconditionally for lack of prosecution. The order appealed from should, therefore, be affirmed. In so holding [682]*682we do not overlook our recent determination in Hardware Mut. Cas. Co. v. Rosenberg (3 A D 2d 988) but consider that case clearly distinguishable on the facts. There, the opposing affidavit contained nothing to excuse the delay, beyond the bare statement that there had been a substitution of attorneys and that those attorneys had acted as expeditiously as circumstances permitted. Here, however, the papers submitted in opposition show facts which we consider clearly sufficient to justify a finding by the Special Term that there was a reasonable excuse for the delay. In the circumstances, there is no basis for interference with the discretion exercised.

Moreover, it may be noted that in the present ease the motion to dismiss was not made until two days after the plaintiff had served its bill of particulars, whereas in Hardware Mutual the plaintiff was alerted to action only after the motion to dismiss had been made.

The order should be affirmed, with $20 costs and disbursements to the plaintiff-respondent.

Botein, P. J., Rabin, McNally, Stevens and Bergan, JJ., concur.

Order unanimously affirmed, with $20 costs and disbursements to the respondent.

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Bluebook (online)

6 A.D.2d 681, 174 N.Y.S.2d 105, 1958 N.Y. App. Div. LEXIS 5714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-insurance-v-fink-nyappdiv-1958.