Nietzel v. Port of New York Authority

Full title: ROBERT L. NIETZEL, Appellant, v. PORT OF NEW YORK AUTHORITY, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 30, 1964

20 A.D.2d 821 (N.Y. App. Div. 1964)

Opinion

March 30, 1964

In an action to recover damages for personal injury, plaintiff appeals from an order of the Supreme Court, Queens County, dated November 20, 1963, which granted defendant's motion to dismiss the complaint for lack of prosecution (CPLR 3216). Order affirmed, without costs ( Conlon v. Andreou, 20 A.D.2d 717; Keating v. Smith, 20 A.D.2d 141).

Beldock, P.J., Ughetta, Hill and Rabin, JJ., concur; Kleinfeld, J., dissents and votes to reverse the order and to deny the motion, with the following memorandum:

Defendant did not move to dismiss for lack of prosecution of the action until after plaintiff had served a note of issue and statement of readiness. Defendant thus acquiesced in the delay, and the motion should be denied (cf. Thompson v. Hook, 18 A.D.2d 710).