Tracey v. McKenna

• Court: New York Supreme Court
• Writing for the Court: MICHAEL CATALANO
• Citation: Tracey v. McKenna, 191 N.Y.S.2d 81, 18 Misc.2d 1000 (N.Y. Sup. Ct. 1959)
• Decision Date: 23 September 1959
• Parties: Anna J. TRACEY as Guardian ad Litem of Charles A. Tracey, Jr., an Infant, Plaintiff, v. Maureen McKENNA and Albert J. McKenna and Donald C. Shomers, Defendants.

Page 81

191 N.Y.S.2d 81

18 Misc.2d 1000

Anna J. TRACEY as Guardian ad Litem of Charles A. Tracey Jr., an Infant, Plaintiff, v. Maureen McKENNA and Albert J. McKenna and Donald C. Shomers Defendants.

Supreme Court, Niagara County.

Sept. 23, 1959.

Stanley Grossman, Niagara Falls, for plaintiff.

Sullivan, Weaver & Maghran, Buffalo, for defendants.

MICHAEL CATALANO, Justice.

The defendants move for an order dismissing the complaint pursuant to Rule 156, Rules of Civil Practice, because of the plaintiff's failure to serve and file a note of issue for a term within six months after issue was joined.

This action is brought for money damages because of personal injuries received in 'an accident which occurred on November 12, 1956.' It was commenced March 23, 1957 and 'issue was joined by the service of an answer on January 22, 1959.' Over 18 months have elapsed since joinder of issue.

The plaintiff's attorney's affidavit states that 'during the spring of 1959' he discussed another action with one 'Mercedes Moss', a representative of a certain insurance company, who desired a second physical examination of the injured plaintiff herein. Said attorney consented to such examination, '* * * and it was mutually agreed that your deponent withhold further prosecution of the above entitled case so that another physical examination could be had and a possible settlement negotiated.'

The only date mentioned by the plaintiff's attorney was 'the spring of 1959,' which was well over one year from the date of joinder of issue, to wit, January 22, 1958. Nowhere does it appear that the named insurance company has any connection with the defendants herein or any of them. One adjournment was granted to the plaintiff in order to serve adequate papers, but the only paper served was the affidavit of the plaintiff's attorney. Rule 156 of the Rules of Civil Practice entitled, 'Motion for dismissal of complaint,' provides, in part, as follows:

'Whenever an issue of fact in any action pending in any court has been first joined and (1) the plaintiff therein shall fail to serve and file a note of issue for a term within six months thereafter * * * the defendant at any time after the expiration of either event may move for the dismissal of the complaint, with costs for the failure on the part of the plaintiff to diligently prosecute such action.

'If it be made to appear to the court on the hearing of such motion that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term; otherwise the complaint shall be dismissed.'

The existence of other litigation between the parties offers no excuse for the delay; nor did due and orderly progress here depend in any legal way upon the outcome in any other action; nor does the occupation of counsel in other litigation justify total stagnation for so long a period of time. Kellner v. Kener, 4th Dept., 216 App.Div....