Taylor v. Edwards

• Court: New York Supreme Court
• Writing for the Court: MURRAY T. FEIDEN
• Citation: Taylor v. Edwards, 48 Misc.2d 1041, 267 N.Y.S.2d 130 (N.Y. Sup. Ct. 1966)
• Decision Date: 24 January 1966
• Parties: Guy TAYLOR, Jr., Plaintiff, v. William EDWARDS and Prentless Clay, Defendants.

Page 130

267 N.Y.S.2d 130

48 Misc.2d 1041

Guy TAYLOR, Jr., Plaintiff, v. William EDWARDS and Prentless Clay, Defendants.

Supreme Court, Special Term, Kings County, Part I.

Jan. 24, 1966.

Wendell P. Levister, Brooklyn, for plaintiff.

Shayne, Dachs, Weiss & Kolbrener, Mineola, for defendant Clay.

Norman Schlessberg, Flushing, for defendant Edwards.

MURRAY T. FEIDEN, Justice.

Motion by defendant Clay to dismiss this action for failure to prosecute after service of the 45 day notice pursuant to C.P.L.R. 3216. It does not appear that the co-defendant was served with notice of this application.

Plaintiff was a passenger in one of the cars which was involved in a two car collision. Both vehicles are insured by the same carrier. Plaintiff sustained serious injuries, suffering a comminuted fracture of the left maxillary bone with depression and deformity requiring surgery and other injuries detailed in plaintiff's opposing papers. Plaintiff served and filed a note of issue only eight days after the expiration of the 45 day notice.

If this motion is granted the statute of limitations will expunge the cause of action exposing the hapless attorney not only to humiliation and embarrassment but also to a substantial malpractice action. While this consideration should not be the sole determining factor in motions of this character such facts should be weighed in determining the equities between the parties (Tex Mode, Inc. v. Dormar Bag, Inc., 23 A.D.2d 652, 257 N.Y.S.2d 516; Parshall v. Grand Leasing Corp., 17 A.D.2d 953, 233 N.Y.S.2d 777; Carbonel v. Ocasio, 41 Misc.2d 33, 245 N.Y.S.2d 670, aff'd 19 A.D.2d 799, 243 N.Y.S.2d 421).

Issue was joined 25 months ago. However, much time was consumed in settlement negotiations which were not concluded because of some internal difficulties encountered by the defendants' carrier. In view of the clear-cut liability, the seriousness of the injuries and the coincidence of the same carrier representing both defendants, it is understandable that plaintiff's attorney could be more easily lulled into expectation of settlement. All things being equal cases such as this, where the liability is clear, should be settled and not become one of the statistics in adding to calendar congestion. Additional lapse of time is accounted for by the bona fide personal difficulties encountered by plaintiff's attorney as outlined in the opposing papers which interfered with his ability to prosecute the action diligently. While it might have been advisable for plaintiff's attorney to have had himself substituted sooner, his failure to do so in the circumstances is understandable. When he received the 45 day notice and was required to proceed expeditiously, he could not do so because plaintiff does not reside within the State of New York, and earns his living as an itinerant bus driver, making it very difficult to establish contact with him.

The explanation of the personal or professional handicaps of plaintiff's attorney is germane in a motion to dismiss (Wolf v. Associates Discount Corp., 12 A.D.2d 241, 209 N.Y.S.2d 877; Zeiger v Kew Towers, 8 A.D.2d 837, 190 N.Y.S.2d 93; Finegan v. Apolito, 21 Misc.2d 881, 197 N.Y.S.2d 242). Under the circumstances here, there can be no claim that plaintiff intended to abandon the action (Marco v. Sachs, 10 N.Y.2d 542, 226 N.Y.S.2d 353, 181 N.E.2d 392; Boyle v. Krebs & Schulz Motors, 18 A.D.2d 1010, 239 N.Y.S.2d 143; Rosenstein v. Rothenberg, 9 A.D.2d 663, 191 N.Y.S.2d 569).

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