Cruz v. National Auto Renting, Inc.

• Decision Date: 15 March 1966
• Citation: 267 N.Y.S.2d 996,25 A.D.2d 633
• Parties: Julio CRUZ, Plaintiff-Respondent, v. NATIONAL AUTO RENTING, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 996

267 N.Y.S.2d 996

25 A.D.2d 633

Julio CRUZ, Plaintiff-Respondent, v. NATIONAL AUTO RENTING, INC., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 15, 1966.

N. Bard, Brooklyn, for plaintiff-respondent.

A. Ducker, New York City, for defendant-appellant.

Before BOTEIN, P. J., and BREITEL, STEUER and STALEY, JJ.

PER CURIAM.

Order entered on April 12, 1965, denying motion of defendant-appellant National Auto Renting, Inc. to dismiss the action for lack of prosecution, unanimously reversed, on the law and on the facts, with $30 costs and disbursements to the appellant, and the motion granted. Issue was joined in this personal injury case in November 1962. A demand served with the answer for a bill of particulars was ignored, notice to examine plaintiff before trial, served in December 1962, was disregarded, no attention was paid to a letter written the following February requesting such examination, and the action continued dormant until appellant served notice under CPLR 3216 on December 30, 1964. On January 9, 1965 appellant received a note of issue, a bill of particulars and a medical report. Plaintiff did not file the note of issue until February 9, 1965. It was rejected as defective and a new note of issue was filed on or about March 2, 1965. A notice to examine plaintiff was returnable on March 3, 1965 but plaintiff failed to appear--evidently because he lacked sufficient interest in the case to keep his attorney informed of his whereabouts so that letters to him were undelivered. This history of inattention is not mitigated by counsel's excuse of a misplaced file nor does the showing of merit address itself adequately to appellant's argument that plaintiff's remedy lies in the Workmen's Compensation Law.