Krell v. Pelham Syndicate, Inc.

• Decision Date: 09 November 1961
• Citation: 14 A.D.2d 845,220 N.Y.S.2d 966
• Parties: Bessie KRELL, Plaintiff-Respondent, v. PELHAM SYNDICATE, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 966

220 N.Y.S.2d 966

14 A.D.2d 845

Bessie KRELL, Plaintiff-Respondent, v. PELHAM SYNDICATE, INC., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 9, 1961.

J. P. Zimmeth, New York City, for plaintiff-respondent.

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

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

PER CURIAM.

Order, entered on July 10, 1961, granting defendant's motion to dismiss the complaint for failure to prosecute unless plaintiff served and filed a note of issue for the September 1961 Term, unanimously modified, on the facts and in the exercise of discretion, so as to dismiss the complaint unconditionally, and, as so modified, affirmed with $20 costs and disbursements to appellant, and judgment directed to be entered in favor of defendant dismissing the complaint, with costs. Plaintiff did not demonstrate a reasonably substantial excuse for the 20 months' delay in prosecuting the action. Settlement negotiations are in themselves an insufficient excuse. (See Polo v. City of New York, 13 A.D.2d 726, 216 N.Y.S.2d 653; Maizonet v. Lee Properties, Inc., 11 A.D.2d 667, 201 N.Y.S.2d 751; cf. Fast v. Meenan Oil Co., Inc., 1 A.D.2d 889, 149 N.Y.S.2d 332; Trapani v. Samuels, 3 A.D.2d 861, 161 N.Y.S.2d 648.) Moreover, the papers disclose defendant's refusal to settle the case at least 8 months before the motion to dismiss was made. Of course, defendant's failure to be examined before trial is completely explained by the fact that plaintiff did not, either by notice or motion, attempt to examine the defendant. Hence, in view of the undue delay and plaintiff's failure to show a satisfactory reason for such delay, the motion to dismiss should have been granted unconditionally.