Valentin v. Ina Holding Corp.

20 A.D.2d 525, 245 N.Y.S.2d 206, 1963 N.Y. App. Div. LEXIS 2755

Opinion

—■ Order, entered on September 25, 1963, denying defendant’s motion to dismiss personal injury negligence action for failure to prosecute, unanimously reversed on the law, the facts, and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs. The accident occurred July 30, 1960. Action was begun October 18,1960 and issue was joined November 2, 1960. Nothing has been done since the joinder of issue except plaintiffs filed a note of issue and statement of readiness on July 19,1963, a few days before the making of the motion to dismiss the action. Plaintiffs seek recovery in gross of $425,000 for an alleged injury to the wife’s eye sustained when glass dust from a broken window entered her eye as she closed the window. The alleged excuse for the delay is that plaintiffs’ lawyer was HI for a six-month period. The affidavit of merits stated generally that the kitchen window in plaintiffs’ apartment was cracked, that notice had been given to the landlord prior to the accident, and that the injuries were sustained while closing the window. While, eoncededly, plaintiff wife sustained a corneal ulcer, the experts disagree as to the cause. In the meantime, defendant’s two medical experts have died. The delay for almost three years is inordinate, and the lawyer’s illness for only six months of that time is therefore no excuse at all. The filing of the late note of issue does not cancel years of delay (see Sortino v. Fisher, 20 A D 2d 25). Concur — Breitel, J. P., Rabin, Valente, Stevens and Bergan, JJ.