DeVita v. Metropolitan Distributors, Inc.

• Decision Date: 04 March 1965
• Citation: 257 N.Y.S.2d 618,45 Misc.2d 761
• Parties: Dennis J. DeVITA, an infant, by Joseph DeVita, his G/A/L, and Joseph DeVita, Plaintiffs, v. METROPOLITAN DISTRIBUTORS, INC., Old Town Corporation, formerly known as Old Town Ribbon and Carbon Co., Inc., and Irving Froelich, Defendants.
• Court: New York Supreme Court

Page 618

257 N.Y.S.2d 618

45 Misc.2d 761

Dennis J. DeVITA, an infant, by Joseph DeVita, his G/A/L and Joseph DeVita, Plaintiffs, v. METROPOLITAN DISTRIBUTORS, INC., Old Town Corporation formerly known as Old Town Ribbon and Carbon Co Inc., and Irving Froelich, Defendants.

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

March 4, 1965.

Cymrot & Wilin, New York City, for defendants Old Town Corp. and Hertz Corp. as successor in interest to Metropolitan Distributing.

Irving Froelich in pro. per.

Roy J. Litwin, Bay Shore, for plaintiffs.

FRANK A. GULOTTA, Justice.

This motion to dismiss plaintiffs' complaint on the grounds of 'gross general delay' is denied.

The function of any litigation should be to permit a fair adjudication of all disputed issues on the merits. This philosophy should be fostered and concouraged whereber possible. Unfortunately this purpose is sometimes frustrated because our adversary system of procedure on occasion lends itself to becoming a gome of wits and strategy rather than a dispassionate search for the truth. One of the inequities of our practice is the situation which permits a defendant to lie stealthily in the shadows of his adversary's inactivity in getting a case to trial, only to emerge, without warning, after the statute of limitations has run and deal his brother lawyer a lethal blow with a motion to dismiss for lack of prosecution.

Of course it may be said that the duty of prosecuting an action is upon the one who brings it, and not on one who defends it. I cannot wholly ascribe to this principle. I am of the opinion that there is a reciprocal obligation on a defendant to press for a speedy determination and vindication of his position is the boast that our procedure is a civilized method of settling disputes is to hold true. The dismissal practice not only indicates a lack of desire to have the issues decided on the merits but lays bare his brother attorney to a suit for malpractice should the motion be granted.

The legislature was alerted to this situation by the bar following the decision of Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186, and promptly amended § 3216 C.P.L.R., effective September 1, 1964, requiring that a defendant as a condition precedent to any motion to dismiss for lack of prosecution serve on a plaintiff a 45 day notice requiring him to serve and file a Note of Issue and that his failure to do so would serve as a basis for a dismissal motion.

I think it fair to say that the purpose of this amendment was to change the rule of the Sortino case. However, in December of that same year the Appellate Division, First Department, in the case of Mulinos v. Coliseum Construction Corp., 22 A.D.2d 163, 254 N.Y.S.2d 282, gave the amendment a very restricted interpretation, saying that it applied only where the sole basis of the motion to dismiss is failure to file and serve a Note of Issue and that in spite of this section the court still retained onto itself the inherent power to control its...