White v. Good Operating Corp.

Appellate Division of the Supreme Court of New York

White v. Good Operating Corp.

19 A.D.2d 802, 243 N.Y.S.2d 260, 1963 N.Y. App. Div. LEXIS 3173

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

DecidedOctober 3, 1963

StatusPublished

This text of 19 A.D.2d 802 (White v. Good Operating Corp.) 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

White v. Good Operating Corp., 19 A.D.2d 802, 243 N.Y.S.2d 260, 1963 N.Y. App. Div. LEXIS 3173 (N.Y. Ct. App. 1963).

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Opinion

Order, entered on November 19, 1962, denying motion to dismiss for lack of prosecution, unanimously reversed, on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion to dismiss the complaint granted, with $10 costs. Plaintiff failed, except feebly, to explain or excuse a delay of 73 months between the time of joinder of issue and the serving and filing of a note of issue (see Seymour V. Lake Shore & Michigan So. By. Co., 12 App. Div. 300). He failed to supply an affidavit of merits (see Gallagher v. Clafington, Inc., 7 A D 2d 627). A dismissal of the action is therefore required, notwithstanding the fact that plaintiff served and filed a note of issue immediately before the making of the motion to dismiss (e.g., Quick Serv. Novelty Corp. v. Scharf, 3 A D 2d 989). Moreover, a showing of undue prejudice to defendant is not necessary (Garcia v, Sentry-Norden Oil é Seating Co., 18 A D 2d 789). Concur — Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.

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Order, entered on November 19, 1962, denying motion to dismiss for lack of prosecution, unanimously reversed, on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion to dismiss the complaint granted, with $10 costs. Plaintiff failed, except feebly, to explain or excuse a delay of 73 months between the time of joinder of issue and the serving and filing of a note of issue (see Seymour V. Lake Shore & Michigan So. By. Co., 12 App. Div. 300). He failed to supply an affidavit of merits (see Gallagher v. Clafington, Inc., 7 A D 2d 627). A dismissal of the action is therefore required, notwithstanding the fact that plaintiff served and filed a note of issue immediately before the making of the motion to dismiss (e.g., Quick Serv. Novelty Corp. v. Scharf, 3 A D 2d 989). Moreover, a showing of undue prejudice to defendant is not necessary (Garcia v, Sentry-Norden Oil é Seating Co., 18 A D 2d 789). Concur — Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.

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Bluebook (online)

19 A.D.2d 802, 243 N.Y.S.2d 260, 1963 N.Y. App. Div. LEXIS 3173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-good-operating-corp-nyappdiv-1963.

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