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Salch v. Paratore

Appellate Division of the Supreme Court of New York, Second Department
Mar 14, 1983
92 A.D.2d 889 (N.Y. App. Div. 1983)

Opinion

March 14, 1983


In an action to recover damages for personal injuries, defendants appeal from two orders of the Supreme Court, Westchester County (Ferraro, J.), both entered May 17, 1982, which denied their respective motions to dismiss the action for want of prosecution. Orders reversed, in the exercise of discretion with one bill of $50 costs and disbursements, defendants' motions granted and complaint dismissed. Defendants each served a proper written demand pursuant to CPLR 3216, requiring plaintiff to resume prosecution of his action and to serve and file a note of issue within 90 days. After the prescribed 90-day period expired, they each moved to dismiss for want of prosecution. Special Term denied their motions, finding that because of the "difficulties * * * encountered by plaintiff's counsel in preparing for trial * * * and in the absence of a showing of prejudice to defendants, plaintiff should not be deprived of his day in court". To defeat defendants' motions to dismiss for want of prosecution, plaintiff was required to demonstrate (1) a justifiable excuse for the delay and (2) a meritorious cause of action ( Steiner v. East Ramapo Cent. School Dist., 88 A.D.2d 594). The excuse proffered by plaintiff for failing to comply with the 90-day notice at bar amounts to no more than law office failure. It was error for Special Term to allow plaintiff to proceed against defendants on the ground that there was no demonstrated prejudice resulting from the delay ( Crucilla v. Howe Richardson Scale Co., 80 A.D.2d 575). Accordingly, it was an abuse of discretion for Special Term to deny the respective motions by defendants to dismiss for want of prosecution ( Kurtin v. Cating Rope Works, 91 A.D.2d 677; Steiner v. East Ramapo Cent. School Dist., supra; Miskiewicz v Hartley Rest. Corp., 58 N.Y.2d 963; cf. Barasch v. Micucci, 49 N.Y.2d 594). Gibbons, J.P., O'Connor, Brown and Boyers, JJ., concur.


Summaries of

Salch v. Paratore

Appellate Division of the Supreme Court of New York, Second Department
Mar 14, 1983
92 A.D.2d 889 (N.Y. App. Div. 1983)
Case details for

Salch v. Paratore

Case Details

Full title:JOHN B. SALCH, Respondent, v. LOUIS PARATORE et al., Appellants

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

Date published: Mar 14, 1983

Citations

92 A.D.2d 889 (N.Y. App. Div. 1983)

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Salch v. Paratore

In an action to recover damages for personal injuries, defendant Louis Paratore appeals from an order of the…