Fischetti v. 242 East 19th St. Corp.
| Decision Date | 22 October 1957 |
| Citation | 167 N.Y.S.2d 47,4 A.D.2d 867 |
| Court | New York Supreme Court — Appellate Division |
| Parties | John FISCHETTI and George Tornesi, Plaintiffs-Respondents, v. 242 EAST 19TH STREET CORPORATION, Defendant-Appellant. |
S. Schwamm, New York City, for defendant-appellant.
B. D. Gold, New York City, for plaintiffs-respondents.
Before BREITEL, J. P., and BOTEIN, FRANK, VALENTE and McNALLY, JJ.
Although this cause had been at issue for three and one-half years and no note of issue had been served and filed, and plaintiffs had been in default under an order of preclusion for three years, Special Term denied defendant's motion to dismiss for lack of prosecution and granted plaintiffs' motion to vacate the order of preclusion. We have repeatedly cautioned that to avoid a dismissal for delay in prosecuting an action, a party must demonstrate a reasonably substantial excuse buttressed by an affidavit of merits by the party. See Rist v. 234 East 33rd Corp., 4 A.D.2d 867, 167 N.Y.S.2d 46, and cases cited therein. The explanation offered herein rests upon an alleged mishandling of the case by an associate in the office of plaintiffs' attorney and the press of other work. This does not constitute an adequate excuse. See Moshman v. City of New York, 3 A.D.2d 822, 824, 825, 160 N.Y.S.2d 977. Additionally, the affidavit of plaintiffs' attorney, insofar as it purports to be an affidavit of merits, fails to show facts indicating a meritorious cause of action. Moreover, no affidavit by the plaintiffs was submitted. Since we hold that there should have been an unconditional dismissal of the action, the order of preclusion and opening plaintiffs' default thereunder (predicated upon the same inadequate excuse) must also fall.
Order unanimously reversed on the facts and in the exercise of discretion with $20 costs and disbursements to the appellant, and the cross-motion to modify the order of preclusion is denied; and the motion by defendant to dismiss the complaint for failure to prosecute is granted and judgment is directed to be entered in favor of the defendant dismissing the complaint with costs.
Appeal dismissed.
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