Bass v. Waxman

18 A.D.2d 998 | N.Y. App. Div. | 1963

In a negligence action to recover damages for personal injury, loss of services and medical expenses, the defendant Louis Waxman appeals from so much of an order of the Supreme Court, Kings County, entered September 17, 1962, granting conditionally his motion to dismiss the complaint for lack of prosecution (Rules Civ. Prae., rule 156), as permitted plaintiffs to file a notice of issue for a subsequent, term of the court. Order modified on the facts and in the exercise of discretion by striking out its two decretal paragraphs, and by substituting therefor a paragraph granting unconditionally said defendant’s motion to dismiss the complaint. As so-modified, order, insofar as appealed from, affirmed, without costs. In our opinion, under the circumstances here, the conditional granting of the motion constituted an improvident exercise of discretion. The plaintiffs failed to show a reasonable excuse for their delay in prosecuting the action. Plaintiffs also failed to make an adequate showing of merit with respect to the causes of action alleged. Beldoek, P. J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.