Bermann v. Esposito

• Court: New York District Court
• Writing for the Court: BERNARD TOMSON
• Citation: Bermann v. Esposito, 228 N.Y.S.2d 18, 35 Misc.2d 59 (N.Y. Dist. Ct. 1962)
• Decision Date: 10 May 1962
• Parties: Sigmund D.BERMANN, Plaintiff, v. Guiseppi ESPOSITO, Defendant.

Page 18

228 N.Y.S.2d 18

35 Misc.2d 59

Sigmund D.BERMANN, Plaintiff, v. Guiseppi ESPOSITO, Defendant.

District Court, Nassau County, First District.

May 10, 1962.

Herman B. Zipser, New York City, for plaintiff.

Kennedy & Dunn, Hempstead, for defendant.

BERNARD TOMSON, Judge.

This is a motion to strike out an affirmative defense which reads: 'As and for a first, separate and affirmative defense to the second cause of action, the defendant alleges this cause of action has been dismissed by order of this Court on April 14, 1961 pursuant to Rule [Section] 161 of the District Court Act; this cause of action was embodied in a prior suit bearing the same title and having Index Number 8370/59.'

Section 161 of the Nassau County District Court Act, Laws 1939, c . 274 reads: 'When an action has remained for more than six months upon the general calendar, or the calendar for actions reserved generally, it may be dismissed by the court upon application of the defendant on notice or, if the action has remained upon said calendar for more than one year, it may be dismissed by the court of its own motion.'

This section is identical with Municipal Court Code, Section 126, and differs in no substantial respect from the import of Civil Practice Act, Section 181 and Rules of Civil Practice, Sections 156, 302.

A dismissal for failure to prosecute has uniformly been held to have been not on the merits. (Mintzer v. Carl M. Loeb, Rhoades & Co., 10 A.D.2d 27, 29, 197 N.Y.S.2d 54, 57; Carter v. Carter, Sup., 223 N.Y.S.2d 319, and cf. Greenberg v. De Hart, 4 N.Y.2d 511, 516, 176 N.Y.S.2d 344, 347, 151 N.E.2d 891, 894.) The instant action was commenced by the service of summons on March 9, 1962. The act of negligence pleaded is stated to have occurred on July 6, 1959. The instant action is not therefore barred by the statute of limitations. (Cf. C.P.A. § 23, Bliss v. Omnibus Corp., 169 Misc. 662, 7 N.Y.S.2d 979; Loomis v. Girard, 256 App.Div. 443, 10 N.Y.S.2d 283; Williams v. New York Life Insurance Co., 11 Misc.2d 823, 174 N.Y.S.2d 392; Pomerantz v. Cave, 10 A.D.2d 569, 197 N.Y.S.2d 406, leave to appeal denied, 8 N.Y.2d 914, 204 N.Y.S.2d 160, 168 N.E.2d 832; Miller v. Hainzl, 29 Misc.2d 514, 216 N.Y.S.2d 346, and Scott v. Rosenwitz, Sup., 213 N.Y.S.2d 196.)

It would appear that the dismissal pursuant to Section 161 of the Nassau County District Court Act, on the authorities cited, did not constitute a dismissal on the merits and did not preclude the initiation of...