Ostan v. 40 Realty, Inc.

• Decision Date: 13 June 1960
• Citation: 11 A.D.2d 710,204 N.Y.S.2d 582
• Parties: Tessie OSTAN, as administratrix of the goods, chattels and credits of the estate of Nicholas Ostan, deceased, and Tessie Ostan, Respondent, v. 40 REALTY, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 582

204 N.Y.S.2d 582

11 A.D.2d 710

Tessie OSTAN, as administratrix of the goods, chattels and credits of the estate of Nicholas Ostan, deceased, and Tessie Ostan, Respondent, v. 40 REALTY, INC., Appellant.

Supreme Court, Appellate Division, Second Department.

June 13, 1960.

Irvin Segal, New York City, for appellant. Alexander E. Rosenthal, New York City, of counsel.

Brendan J. Stynes, Mineola, for respondent.

Before BELDOCK, Acting P. J., and KLEINFELD, CHRIST, PETTE and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, defendant appeals from an order of the Supreme Court, Queens County, entered September 29, 1959, denying its motion (1) to dismiss the complaint for lack of prosecution, and (2) to vacate plaintiff's notice to examine defendant before trial.

Order affirmed, without costs; the examination to proceed on 20 days' notice or on a date to be mutually fixed.

No prejudice to defendant was shown to have resulted from the delay of 14 months between the joinder of issue and the making of this motion (Keller v. Nat. Auto Renting Co., 10 A.D.2d 578, 196 N.Y.S.2d 607; Brill v. County of Westchester, 4 A.D.2d 690, 164 N.Y.S.2d 181).