Roe v. Kurkhill

• Court: New York Supreme Court — Appellate Division
• Citation: Roe v. Kurkhill, 174 N.Y.S.2d 573, 6 A.D.2d 716 (N.Y. App. Div. 1958)
• Decision Date: 19 May 1958
• Parties: Grant A. ROE, respondent, v. Martin A. KURKHILL, Charles Walters and Morris B. May, d/b/a Tiffany Metal Products, appellants.

Page 573

174 N.Y.S.2d 573

6 A.D.2d 716

Grant A. ROE, respondent, v. Martin A. KURKHILL, Charles Walters and Morris B. May, d/b/a Tiffany Metal Products, appellants.

Supreme Court, Appellate Division, Second Department.

May 19, 1958.

Paul Rosen, for appellant.

Thomas J. Byrne, New York City, for respondent.

Before NOLAN, P. J., and WENZEL, BELDOCK, MURPHY and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, and for other relief, the appeal is from an order denying appellants' motion to dismiss the complaint for lack of diligent prosecution.

Order reversed, with $10 costs and disbursements, and motion granted, without costs.

Respondent failed to present a reasonable excuse for the delay of over five years in bringing the action on for trial and failed to present facts showing merit in his action. The denial of the motion was therefore an improvident exercise of discretion (Cooperman v. Princeton Realty Corp., 3 A.D.2d 850, 161 N.Y.S.2d 503; Moebus v. Paul Tishman Co., 5 A.D.2d 786, 170 N.Y.S.2d 611). Furthermore, the action having been marked off the calendar and not restored within one year thereafter is to be...