Davis v. Lyndel Corp.

• Decision Date: 15 May 1961
• Citation: 216 N.Y.S.2d 440
• Parties: Joseph DAVIS v. LYNDEL CORP., Barbco Building & Contracting Co., Inc., Kennedy, Scheidel & Young, Inc., Clark Door Co., Inc., The Spivey Co., Inc., United Parcel Service of New York, Inc., and B. Messite Co.
• Court: New York Supreme Court

Page 440

216 N.Y.S.2d 440

Joseph DAVIS v. LYNDEL CORP., Barbco Building & Contracting Co., Inc. Kennedy, Scheidel & Young, Inc., Clark Door Co Inc., The Spivey Co., Inc., United Parcel Service of New York Inc., and B. Messite Co.

Supreme Court, Special Term, Kings County, Part I.

May 15, 1961.

Rothbard & Schulman, Brooklyn, for plaintiff.

John P. Smith, New York City, for defendant Lyndel Corp.

George S. Pickwick, New York City, for defendant Kennedy, Scheidel & Young, Inc.

GEORGE ROSLING, Justice.

Motion of plaintiff for omnibus relief is disposed of as follows:

(1) Plaintiff's default in opposing motion of defendant Kennedy for an order dismissing the above action as to said defendant for alleged failure of plaintiff to prosecute this action is reopened, order entered on such default is vacated, and such motion to dismiss, having been entertained and heard, is denied, subject to the further provisions of the order to be entered herein, as set forth in the following.

(2) Stay of contemplated proceedings on the part of the defendant Lyndel is denied.

(3) Examination before trial upon the matters enumerated in subdivision 'd' of the plaintiff's notice of motion, for the purpose of framing a complaint is authorized, limited, however, as to defendants who have been served with a summons and as to whom the action continues. Said defendants shall submit for said examination such officers, agents, or employees as have familiarity with the matters to be inquired into, and shall produce such books and papers in their custody or under their control as may be relevant thereto, for use pursuant to Civil Practice Act § 296. Plaintiff may renew his application for such examination and for relief with respect thereto should it be made to appear upon the examination's being initiated that the persons so submitted do not have adequate knowledge or the books and papers so produced constitute an insufficient compliance, within the intent of the direction in the order.

(4) The time for the service of a complaint is extended to a date twenty days after the examinations provided for in said order shall have been completed.

(5) Application for further or incidental relief, including a renewal or bringing on of a motion to dismiss the action for failure to proceed diligently in the conduct of said examinations or to prosecute the action following the entry and service of said order may be made.

'In dealing with the failure to prosecute an action, the personal or professional difficulties of lawyers for a party are germane to the inquiry.' Wolf v. Associates Discount Corp., 12 A.D.2d 241, 209 N.Y.S.2d 877, 879. The conduct of a former employee who has compounded faithlessness with concealment of its consequences is as much an unavoidable and uninvited disaster in an overbusy law office as would be the destruction of its records by fire. The diligence exercised by plaintiff's attorney, as related in his supporting affidavit, in his endeavor to obtain employees of efficiency and professional integrity cannot in fairness be rejected in the court's consideration of the opposing contention that plaintiff's conduct evidenced the unreasonable neglect to proceed in the action which under Civil Practice Act, § 181 must be found to justify a dismissal and the denial to the party of his day in court. The Appellate Division in this department has repeatedly refused to exact this ultimate penalty in litigation for mere delay, where the defendant shows no...