Schaeffer v. Nathan's Famous, Inc.

• Decision Date: 29 December 1972
• Citation: 40 A.D.2d 1041,339 N.Y.S.2d 94
• Parties: Theodore SCHAEFFER et al., Appellants, v. NATHAN'S FAMOUS, INC., Defendant Third-party Plaintiff-Respondent, et al., Defendant, et al., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 94

339 N.Y.S.2d 94

40 A.D.2d 1041

Theodore SCHAEFFER et al., Appellants, v. NATHAN'S FAMOUS, INC., Defendant Third-party Plaintiff-Respondent, et al., Defendant, et al., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 29, 1972.

Before MARTUSCELLO, Acting P.J., and LATHAM, SHAPIRO, CHRIST and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for assault, false arrest and imprisonment, and malicious prosecution, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated January 7, 1972, which granted defendant's motion, pursuant to CPLR 3216, to dismiss the complaint for failure to prosecute.

Order reversed, without costs, and motion denied, upon condition that plaintiffs' attorney personally pay $100 to defendant. The payment must be made within 20 days after entry of the order to be made herein.

In our opinion the granting of the motion to dismiss the complaint was an improvident exercise of discretion under the circumstances of this case. The factors set forth in Moran v. Rynar (39 A.D.2d 718, 332 N.Y.S.2d 138) have been considered and we believe that proper showings of excuse, absence of wilfulness, and substance and merit to the action have been made (Moran v. Rynar, Supra; Springer v. Marangio, 38 A.D.2d 852, 330 N.Y.S.2d 100). We believe further that the imposition of $100 costs upon plaintiffs' attorney, personally, is a proper penalty for his failure to diligently prosecute the action (Moran v. Rynar, Supra; Springer v. Marangio, Supra; Douglaston Estates v. Consolidated Edison Co., 39 A.D.2d 705, 332 N.Y.S.2d 403).