Whitton v. Steppes Beauticians, Inc.

New York Supreme Court

Whitton v. Steppes Beauticians, Inc.

22 Misc. 2d 128, 203 N.Y.S.2d 208, 1960 N.Y. Misc. LEXIS 3211

DecidedApril 8, 1960

StatusPublished

This text of 22 Misc. 2d 128 (Whitton v. Steppes Beauticians, Inc.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Whitton v. Steppes Beauticians, Inc., 22 Misc. 2d 128, 203 N.Y.S.2d 208, 1960 N.Y. Misc. LEXIS 3211 (N.Y. Super. Ct. 1960).

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Opinion

Mario Pittoni, J.

Motion to dismiss the cause of action for neglect of prosecution granted.

The summons was served in May, 1958. A notice of appearance was served on June 5, 1958. No complaint was served prior to the service of the motion papers herein. On January 5, 1959 the defendant, by stipulation in writing, agreed to extend the plaintiffs ’ time to serve a complaint until January 31, 1959.

The excuse offered for the delay is twofold: (1) that the plaintiffs’ attorney attempted to'obtain a settlement, and (2) that the file was inadvertently mislaid. Neither excuse has merit. There are no factual allegations to show that the defendant was at all responsible for the delay, and the last communication [129]*129with the defendant’s attorney was in January, 1959 (Birch v. Wolper, 1 A D 2d 1028 [2d Dept.]; Trapani v. Samuels, 3 A D 2d 861 [2d Dept.]). It has also been held that it is not a reasonable excuse to claim the file was mislaid (Moshman v. City of New York, 3 A D 2d 822).

Were the excuse for the delay reasonable, the motion would nevertheless be granted as there is no affidavit of merits by the plaintiff Martha Whitton. The affidavit by an attorney who has no personal knowledge of the facts is entitled to no consideration (Birch v. Wolper, supra; Sigmund v. House of Cutlery, 7 A D 2d 565; Fiorello v. Towers Management Corp., 6 A D 2d 677).

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Mario Pittoni, J.

Motion to dismiss the cause of action for neglect of prosecution granted.

The summons was served in May, 1958. A notice of appearance was served on June 5, 1958. No complaint was served prior to the service of the motion papers herein. On January 5, 1959 the defendant, by stipulation in writing, agreed to extend the plaintiffs ’ time to serve a complaint until January 31, 1959.

The excuse offered for the delay is twofold: (1) that the plaintiffs’ attorney attempted to'obtain a settlement, and (2) that the file was inadvertently mislaid. Neither excuse has merit. There are no factual allegations to show that the defendant was at all responsible for the delay, and the last communication [129]*129with the defendant’s attorney was in January, 1959 (Birch v. Wolper, 1 A D 2d 1028 [2d Dept.]; Trapani v. Samuels, 3 A D 2d 861 [2d Dept.]). It has also been held that it is not a reasonable excuse to claim the file was mislaid (Moshman v. City of New York, 3 A D 2d 822).

Were the excuse for the delay reasonable, the motion would nevertheless be granted as there is no affidavit of merits by the plaintiff Martha Whitton. The affidavit by an attorney who has no personal knowledge of the facts is entitled to no consideration (Birch v. Wolper, supra; Sigmund v. House of Cutlery, 7 A D 2d 565; Fiorello v. Towers Management Corp., 6 A D 2d 677).

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22 Misc. 2d 128, 203 N.Y.S.2d 208, 1960 N.Y. Misc. LEXIS 3211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitton-v-steppes-beauticians-inc-nysupct-1960.