Gino v. Syracuse Memorial Hospital, Inc.
| Decision Date | 20 May 1965 |
| Citation | 261 N.Y.S.2d 523,23 A.D.2d 964 |
| Parties | Chester GINO, as Guardian ad Litem of William Gino, Respondent, v. SYRACUSE MEMORIAL HOSPITAL, INC., Appellant. Chester GINO, Respondent, v. SYRACUSE MEMORIAL HOSPITAL, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
MacKenzie, Smith, Lewis, Michell & Hughes, Syracuse, for appellant (John R. Coughlin, Syracuse, of counsel).
Richardson and Fellows, Syracuse, for respondents (Gustav P. Blaustein, Rochester, of counsel).
Before BASTOW, J. P., and GOLDMAN, HENRY, NOONAN and DEL VECCHIO, JJ.
The defendant appeals from the denial of its motion which sought an order striking notes of issue or in the alternative dismissing the causes of action for failure to prosecute. The actions are by an infant for personal injuries and his father for derivative damage. The negligent acts alleged by the plaintiffs took place on July 25, 1956, August 4, 1956, and August 5, 1956. The actions were commenced on July 17, 1957 by service of summonses. Notices of retainer were served August 16, 1957. On March 3, 1958 a motion to dismiss the summonses was made which resulted in a conditional order. The complaints were furnished in compliance with the condition. As the result of a motion to preclude heard October 6, 1958 an order was granted, again conditionally. Copies of this order were served November 5, 1958 and bills of particulars supplied November 25, 1958. On October 18, 1962 a motion to dismiss the complaints for failure to prosecute was made. This motion was adjourned from time to time at the request of the plaintiffs and never argued or decided. Thereafter and on December 3, 1962 a stipulation of discontinuance was filed in each case and copies sent to plaintiffs' attorney. There is a factual dispute as to certain conditions of this stipulation asserted by the plaintiffs which for the purposes of this appeal need not be discussed. On or about October 28, 1964 plaintiffs filed and served notes of issue. It was this that brought on the motion resulting in the order which is now before this court.
The plaintiffs' paper resisting the motion makes no attempt to show the causes of action are meritorious. Entirely apart from that, however, is the stark and naked fact that since supplying the bills of particulars on November 25, 1958, about 6 years prior to the defendant's motion to dismiss, the plaintiffs have taken no affirmative step to prosecute these cases. The only...
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