Sigmund v. House of Cutlery, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: Sigmund v. House of Cutlery, Inc., 184 N.Y.S.2d 904, 7 A.D.2d 565 (N.Y. App. Div. 1959)
• Decision Date: 28 April 1959
• Parties: Dorothy SIGMUND, Plaintiff-Respondent, v. HOUSE OF CUTLERY, INC., Samuel Sindel and William Stone, Defendants-Appellants.

Page 904

184 N.Y.S.2d 904

7 A.D.2d 565

Dorothy SIGMUND, Plaintiff-Respondent, v. HOUSE OF CUTLERY, INC., Samuel Sindel and William Stone Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

April 28, 1959.

Ira H. Newman, New York City, of counsel (Newman, Hauser & Teitler, New York City, attorneys) for defendants-appellants House of Cutlery, Inc. and William Stone.

Adolph Axelrad, New York City, for defendant-appellant Samuel Sindel.

Jacob W. Friedman, New York City, for plaintiff-respondent.

Before BOTEIN, P. J., and RABIN, FRANK, McNALLY and STEVENS, JJ.

PER CURIAM.

These are consolidated appeals from orders which denied motions by the defendants to dismiss the complaint for failure to prosecute the action.

The acts complained of occurred sometime between 1950 and 1952. The action was begun and issue joined in 1955. Security, required by an order dated August 30, 1955, since plaintiff was a nonresident, was not posted until April 17, 1958.

There is no affidavit of merits by the party to the action and the affidavit of plaintiff's counsel is totally inadequate to satisfactorily explain the reason for the long delay. Rist v. 234 East 33rd Corp., 4 A.D.2d 867, 167 N.Y.S.2d 46; Cooper v. Schnabolk, 283 App.Div. 937, 130 N.Y.S.2d 606; Charles Barnett Co. v. St. Paul Fire & Marine Ins. Co., 7 A.D.2d 897, 181 N.Y.S.2d 890.

The failure to notice the case for trial for approximately 34 months after joinder of issue under the circumstances shown here required that in the proper exercise of its discretion the court dismiss the action for lack of prosecution. Davis v. Cunard Steanship Co., Ltd., 284 App.Div. 1036, 135 N.Y.S.2d 665.

The orders appealed from should be reversed on the facts, and in the exercise of discretion, with costs to the appellants, and judgment directed to be entered dismissing the complaint. Orders...