Augenstein v. Schafran

• Decision Date: 24 November 1958
• Citation: Augenstein v. Schafran, 191 N.Y.S.2d 222, 17 Misc.2d 179 (N.Y. Sup. Ct. 1958)
• Parties: Sophie AUGENSTEIN and Herman Augenstein, Respondents, v. Samuel SCHAFRAN, Alexander Muss, Jacob L. Rapport and Manhattan Houses, Inc., Defendants; Alexander Muss and Manhattan Houses, Inc., Appellants.
• Court: New York Supreme Court

Page 222

191 N.Y.S.2d 222

17 Misc.2d 179

Sophie AUGENSTEIN and Herman Augenstein, Respondents, v. Samuel SCHAFRAN, Alexander Muss, Jacob L. Rapport and Manhattan Houses, Inc., Defendants; Alexander Muss and Manhattan Houses, Inc., Appellants.

Supreme Court, Appellate Term, Second Department.

Nov. 24, 1958.

Tropp & Steinbock, New York City, I. Sidney Worthman, New York City, for appellants.

Cusack, McLaughlin & O'Rourke, New York City, Francis J. McLaughlin, New York City, for respondents.

Before PETTE, DI GIOVANNA and BROWN, JJ.

PER CURIAM.

Order denying motion to dismiss action for failure to prosecute unanimously reversed on the facts and in the exercise of discretion with $10 costs and taxable disbursements to thedefendants-appellants, and the motion granted without costs.

The accident upon which this action for personal injuries and loss of services is predicated occurred on September 26, 1953. The action was commenced on October 9, 1956 and issue was joined on December 10, 1956. Nothing further was done by the plaintiffs other than to serve a bill of particulars pursuant to an order of preclusion and to place this case on the calendar subsequent to the making of this motion. The only reason presented for the delay is the failure of the defendants' attorneys to respond to a telephone call made on an unspecified date 'to see if a settlement could be arrived at.' This does not constitute a substantial excuse for the failure to prosecute, nor does the service and filing of a note of issue after this motion was made excuse past neglect. Nigro v. City of New York, 3 A.D2d...