Reilly v. Mirailh

• Decision Date: 10 December 1963
• Citation: Reilly v. Mirailh, 20 A.D.2d 526, 245 N.Y.S.2d 207 (N.Y. App. Div. 1963)
• Parties: Lawrence P. REILLY and Rita J. Reilly, Ferdinand A. Pastor and Bernice S. Pastor, Plaintiffs-Appellants, George Follini et al., Plaintiffs, v. Manuel MIRAILH et al., Defendants and The City of New York, Consolidated Edison Company of New York, Inc., Hunts Point Construction Corp. and Consolidated Telegraph and Electrical Subway Co., Inc., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 207

245 N.Y.S.2d 207

20 A.D.2d 526

Lawrence P. REILLY and Rita J. Reilly, Ferdinand A. Pastor and Bernice S. Pastor, Plaintiffs-Appellants George Follini et al., Plaintiffs, v. Manuel MIRAILH et al., Defendants and The City of New York Consolidated Edison Company of New York, Inc., Hunts Point Construction Corp. and Consolidated Telegraph and Electrical Subway Co., Inc., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 10, 1963.

B. A. Hartman, New York City, for plaintiffs-appellants.

B. M. Watson, J. M. Keegan, W. F. Larkin, J. R. O'Reilly, New York City, for defendants-respondents.

Before BREITEL, J. P., and RABIN, VALENTE, STEVENS and BERGAN, JJ.

PER CURIAM.

Order, entered on August 10, 1962, granting defendants' motions to dismiss personal injury negligence action for failure to prosecute, unanimously affirmed with $20 costs and disbursements to the respondents. The accident occurred December 25, 1955, early in the morning, when an automobile, in which plaintiffs were passengers, struck a pile of dirt in a street undergoing construction. The action was begun October 30, 1956. Because of the number of defendants, the interpleader of third-party defendants, and the service of supplemental and amended complaints, there was no final joinder of issue until November 1958. The last proceeding was an examination before trial which was not completed until April 25, 1961. In 1962 two notes of issue were filed, the first being concededly improper and abortive. The second was filed on July 9, 1962 and two of the defendants moved within four days to dismiss for failure to prosecute. The order made on the motion to dismiss was entered over a year ago, in August 1962. No pleadings or bills of particulars are included in the...