Salch v. Paratore

• Decision Date: 14 March 1983
• Citation: 459 N.Y.S.2d 876,92 A.D.2d 889
• Parties: John B. SALCH, Respondent, v. Louis PARATORE, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 876

459 N.Y.S.2d 876

92 A.D.2d 889

John B. SALCH, Respondent, v. Louis PARATORE, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

March 14, 1983.

Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie (Myra I. Packman, Poughkeepsie, of counsel), for appellant Vassar Bros. Hosp.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Thomas V. Svogun, Elmont, of counsel), for appellant Louis Paratore.

DeVito & Pilkington, White Plains (John J. Pilkington, White Plains, of counsel), for appellant Isidro Ferrando.

Richard S. Scanlan, White Plains, for respondent.

Before GIBBONS, J.P., and O'CONNOR, BROWN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, defendants appeal from two orders of the Supreme Court, Westchester County, both entered May 17, 1982, which denied their respective motions to dismiss the action for want of prosecution.

Orders reversed, in the exercise of discretion with one bill of $50 costs and disbursements, defendants' motions granted and complaint dismissed.

Defendants each served a proper written demand pursuant to CPLR 3216, requiring plaintiff to resume prosecution of his action and to serve and file a note of issue within 90 days. After the prescribed 90-day period expired, they each moved to dismiss for want of prosecution. Special Term denied their motions, finding that because of the "difficulties encountered by plaintiff's counsel in preparing for trial * * * and in the absence of a showing of prejudice to defendants, plaintiff should not be deprived of his day in court".

To defeat defendants' motions to dismiss for want of prosecution, plaintiff was required to demonstrate (1) a justifiable excuse for the delay and (2) a meritorious cause of action (Steiner v. East Ramapo Cent. School Dist., 88 A.D.2d 594, 449 N.Y.S.2d 778). The excuse proffered by plaintiff for failing to comply with the 90-day notice at bar amounts to no more than law office failure.

It was error for Special Term to allow plaintiff to proceed against defendants on the ground that there was no demonstrated prejudice resulting from the delay (Crucilla v. Howe Richardson Scale Co., 80 A.D.2d 575, 435 N.Y.S.2d 789). Accordingly, it was an abuse of discretion, for Special Term to deny the respective motions by defendants to dismiss for want of prosecution (Kurtin v. Cating Rope Works, App.Div., 457 N.Y.S.2d 335 (2d Dept.1982); Steiner v. East Ramapo Cent....