Hardy v. New York City Housing Authority

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: Hardy v. New York City Housing Authority, 254 N.Y.S.2d 213, 22 A.D.2d 787 (N.Y. App. Div. 1964)
• Decision Date: 24 November 1964
• Parties: Thomasine HARDY, as Administratrix of the Goods, Chattels and Credits which were of Ellouise Johnson, Deceased, Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.

Page 213

254 N.Y.S.2d 213

22 A.D.2d 787

Thomasine HARDY, as Administratrix of the Goods, Chattels and Credits which were of Ellouise Johnson Deceased, Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 24, 1964.

T. J. Brady, New York City, for plaintiff-respondent.

I. S. Worthman, New York City, for defendant-appellant.

Before BOTEIN, P. J., and RABIN, VALENTE, STEVENS and EAGER, JJ.

PER CURIAM.

Order, entered on August 5, 1964, unanimously reversed, on the law and on the facts, and in the exercise of discretion, without costs, and motion to dismiss for lack of prosecution granted but with leave to plaintiff to move to vacate the dismissal upon a proper showing of merit in the action, provided, however, the motion shall be made within twenty days after service of order hereon with notice of entry. The proceedings for trial were deferred because of the unavailability of the city hospital records, the delay in an examination before trial of resident building superintendent and in the return of the transcript of his testimony and a rejection for defects, of note of issue, prepared for filing and service to place the matter on the calendar. Defendant acquiesced in the delay in prosecution and Special Term held that the 'delay * * * [was] not entirely the fault of the plaintiff.' Under all the circumstances in this case, the delay would be excusable upon a proper showing of merit to the action. (Kallman v. Wolf Corporation, 19 A.D.2d 521, 239 N.Y.S.2d 1020; Spira v. D. Harris, 187th St. Market, Inc., 18 A.D.2d 1063, 239 N.Y.S.2d 500; Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186.) The attorneys' affidavit, however, as...