Papain v. American Ins. Co.

• Court: New York Supreme Court
• Writing for the Court: MARIO PITTONI
• Citation: Papain v. American Ins. Co., 212 N.Y.S.2d 117, 28 Misc.2d 746 (N.Y. Sup. Ct. 1961)
• Decision Date: 08 March 1961
• Parties: Irene PAPAIN, Plaintiff, v. AMERICAN INSURANCE COMPANY, Defendant.

Page 117

212 N.Y.S.2d 117

28 Misc.2d 746

Irene PAPAIN, Plaintiff, v. AMERICAN INSURANCE COMPANY, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

March 8, 1961.

Sirota & Kurta, New York City, for plaintiff.

George I. Janow, New York City, for defendant.

MARIO PITTONI, Justice.

The defendant moves for an order dismissing the complaint for lack of prosecution.

The plaintiff is suing the defendant on a policy of insurance issued to her by the defendant for a claim by reason of an alleged theft of two fur garments on December 3, 1957. The policy had a provision outlawing the claim unless a lawsuit was started within a year. On December 2, 1958 the plaintiff served a summons on the defendant. On December 19, 1958 the defendant served a notice of appearance; and on February 25, 1959, after some stipulated extensions of time, the plaintiff served the complaint. On March 16, 1959 the defendant served its answer.

The plaintiff's attorneys contend that the answer was misplaced in their office and that it could not be found. Whereupon M. S., one of the plaintiff's attorneys, says that on November 27, 1959 and December 29, 1959 he wrote to the defendant's attorney for a copy of the answer, but that none was ever received. This is vehemently contested by the defendant's attorney who says that he mailed a second copy to the plaintiff's attorneys on December 1, 1959, and then heard nothing further from them until this present motion was instituted in January, 1961. Later, the plaintiff's attorneys served and filed a note of issue.

M. S., one of the plaintiff's attorneys, says that during 1960 he was ill from cardiac and gall bladder conditions, and thus was not able to 'fully attend to his office obligations.'

The several contentions of the plaintiff's attorneys lack sufficient legal excuse for the delay. Nearly two years have elapsed since joinder of issue, and mishandling and procrastination are not sufficient to excuse them against this motion to dismiss. The excuse that one of the partners, M. S., was ill during 1960 so that he 'could not fully attend to his office obligations' is lacking in merit; he was only one of the partners in a firm that also had several lawyer associates. The circumstances of this case fail to disclose a reasonable excuse for the delay and command a dismissal of the complaint. Fischetti v. 242 East 19th St. Corp., 1 Dept., 4 A.D.2d 867, 167 N.Y.S.2d 47; Moshman v. City of New York, 1 Dept., 3 A.D.2d 822, 160 N.Y.S.2d 977; Brassner Mfg. Co., Inc. v. Consolidated Edison Co., 2 Dept., 1 A.D.2d 840, 148 N.Y.S.2d 782. The fact that the plaintiff's attorneys served a note of issue after this motion was begun does not excuse past neglect (Maizonet v. Lee Properties, Inc., 1 Dept., 11 A.D.2d 667, 201 N.Y.S.2d 751; Hardware Mutual Casualty Co. v. Rosenberg, 1 Dept., 3...