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eBook details

• Title: Anna Lakowitz Et Al. v. Marlin Gardens
• Author : Supreme Court of New York
• Release Date : January 15, 1958
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

This is an appeal from an order denying a motion to dismiss the complaint for failure to prosecute. The papers clearly indicate
a disregard of the repeated admonition that on a motion of this kind there must be a substantial demonstration of a valid
excuse or a justification for the failure to proceed expeditiously with the action, and, in addition, there must be an affidavit
of merits by the plaintiff. (See Rist v. 234 East 33rd Corp., 4 A.D.2d 867; Hyde & Sons v. Roller Derby Skate Co., 1
A.D.2d 942; Davis v. Cunard S.S. Co., 284 App. Div. 1036; Cooper v. Schnabolk, 283 App. Div. 937.) These requirements may
not be ignored with impunity, nor will the courts acquiesce in a perfunctory compliance. The order denying the motion to dismiss
is reversed on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion
is granted, with leave, however, to the plaintiff, upon the payment of a full bill of costs to date in addition to costs and
disbursements on appeal, to move at Special Term to vacate the order of dismissal within 30 days after the service of a copy
of the order with notice of entry. The motion to vacate the order of dismissal must be based upon papers containing recitals
of facts in compliance with the Civil Practice Act. Settle order. Concur - Botein, P.J., Breitel, Rabin, Frank and Bastow,
JJ.

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