Tricarico v. Kahan

• Decision Date: 04 December 1962
• Citation: 236 N.Y.S.2d 173
• Parties: Rocco TRICARICO v. Aaron KAHAN.
• Court: New York Supreme Court

Page 173

236 N.Y.S.2d 173

Rocco TRICARICO v. Aaron KAHAN.

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

Dec. 4, 1962.

Brady, Devlin, Grubbs, Lawler & Reid, Brooklyn, for defendant, for motion.

Knigin, Haring & Eschen, Brooklyn, for plaintiff, opposed.

MURRAY T. FEIDEN, Justice.

Motion to dismiss for lack of prosecution.

The moving papers assert a delay of eighteen months after joinder of issue. Delays of such or even greater duration have not been fatal to the position of the plaintiff in cases where the plaintiff has coupled a sufficient excuse for failure to have placed the action on the calendar with a demonstration of the existence of a meritorious cause of action. Majestic Refrigerator Corp. v. Stassou, 283 App.Div. 729 128 N.Y.S.2d 551, a delay of 3 years; Brown v. City of New York, 1 A.D.2d 905, 150 N.Y.S.2d 918, a delay of 3 years and 4 months; Levine v. City of New York, 3 A.D.2d 682, 159 N.Y.S.2d 265, a delay of 2 years and 8 months; Brill v. Westchester County, 4 A.D.2d 690, 164 N.Y.S.2d 181, a delay of 2 years and 3 months; Kanare v. City of New York, 6 A.D.2d 696, 174 N.Y.S.2d 259, a delay of 2 years and 4 months; Kegel v. Ira S. Bushey & Sons, 4 A.D.2d 785, 165 N.Y.S.2d 721, a delay of 25 months; Bodike v. City of New York, App.Term, Second Dept. June 1955, a delay of 3 years and 6 months; Keller v. National Auto Renting Co., 10 A.D.2d 578, 196 N.Y.S.2d 607, a delay of 17 months.

The motion, be it noted, was made returnable less than a month before the Statute of Limitations will have run. The Appellate Division of this Department has recognized that the tolling of the statute is a factor of weight in the consideration of a motion of this character.

In the case of Parshall v. Grand Leasing Corp., 17 A.D.2d 953, 233 N.Y.S.2d 777, the court said:

'It is also to be noted that their motion to dismiss was made after the Statute of Limitations had run on the plaintiff's cause of action, with the consequence that the plaintiff would be denied her day in court if the prior order dismissing the complaint were allowed to stand.'

The plaintiff has submitted the requisite affidavit of merits. He has also described serious efforts to dispose of the instant action by settlement and has explained that interruption in the continuity of such negotiation was occasioned by the claim of the defendant's attorneys that the file in the cause was misplaced incident to a removal of their offices.

While generally settlement negotiations will not, in themselves condone delay (Polo v. City of New York, 13 A.D.2d 726, 216 N.Y.S.2d 653; Maizonet v. Lee Props, 11 A.D.2d 667, 201 N.Y.S.2d 751; cf. East v. Meenan Oil Co., 1 A.D.2d 889, 149 N.Y.S.2d 332; Trapani v. Samuels, 3 A.D.2d 861, 161 N.Y.S.2d 648; Krell v. Pelham Syndicate, Inc., 14 A.D.2d 845, 220 N.Y.S.2d 966) the court is constrained to observe that Section '2', subd. '(b)' of the Statement of Readiness Rules requires that an attorney filing such statement set forth that settlement of the action has been discussed unsuccessfully; or to indicate why no settlement discussions have been had. It would appear that, in compliance with the stated rule, the plaintiff was making a genuine effort to dispose of this litigation by settlement before preparing the papers required for placing the cause upon the calendar and incurring the expense incidental thereto.

The facts of Keller v. National Auto Renting Co., 10 A.D.2d 578, 196 N.Y.S.2d 607, so far as they relate to the present motion, bear a striking similarity to those in the instant case. The record on appeal in such case reflects a delay of seventeen months after joinder of issue, and that had the motion, in the cited case, to dismiss for lack of prosecution been granted, the Statute of Limitations would have tolled the cause, thus depriving the plaintiff of his day in court. There, as here, the excuse offered for the delay in placing the action on the calendar was the pendency of settlement negotiations. The Appellate Division of...