Benjamin v. Chock Full of Nuts Inc.
| Decision Date | 21 February 1963 |
| Citation | 18 A.D.2d 906,237 N.Y.S.2d 986 |
| Parties | Gerard BENJAMIN, Plaintiff-Respondent, v. CHOCK FULL OF NUTS INC., Defendant-Appellant, and Melvin Johnson, Defendant. |
| Court | New York Supreme Court — Appellate Division |
I. S. Worthman, New York City, for defendant-appellant.
E. A. Williams, Rochester, for plaintiff-respondent.
Before RABIN, J. P., and McNALLY, STEVENS, EAGER and STEUER, JJ.
Order, entered on June 28, 1962, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant. Present counsel states that former counsel of record was erroneously given the impression that the note of issue had been filed during the time of his illness, and advances as a further explanation the failure of the plaintiff to deposit the necessary filing fee for a note of issue. These are insufficient excuses to justify a failure to diligently prosecute for eighteen months after issue was joined. Inadvertence under such circumstances has been held to be an inadequate excuse (Goldfarb v. Mallin, 3 A.D.2d 735, 160 N.Y.S.2d 125). Moreover, if plaintiff was unable to advance the filing fee the remedy was to apply to sue as a poor person rather than delay the prosecution of the action. Granich v. Stolovitz, 270 App.Div. 899, 61 N.Y.S.2d 272; Tuttle v. Dubuque Fire & Marine Ins. Co., 155 App.Div. 802, 140 N.Y.S. 930; Kachel v. Stutz, 137 App.Div. 199, 121 N.Y.S.2d 979. Order filed.
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...of New York, 18 A.D.2d 898, 237 N.Y.S.2d 980; Cronin v. City of New York, 18 A.D.2d 995, 238 N.Y.S.2d 734; Benjamin v. Chock Full O'Nuts, Inc., 18 A.D.2d 906, 237 N.Y.S.2d 986; Waldman v. Cedar Mgt. Corp., 11 A.D.2d 646, 201 N.Y.S.2d 238; Fischetti v. 242 East 19th Street Corp., 4 A.D.2d 86......
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...an adequate explanation for the delay. (See Granich v. Stolovitz, 270 App.Div. 899, 61 N.Y.S.2d 272; Benjamin v. Chock Full of Nuts, Inc., 18 A.D.2d 906, 237 N.Y.S.2d 986.) The motion was submitted and decided at Special Term prior to the 1964 amendment to CPLR 3216 (Ch. 974 of Laws of 1964......