28 Misc. 2d 968 | N.Y. Sup. Ct. | 1961
This motion to dismiss for failure to prosecute is denied. The action is one for malpractice brought by an insured against his insurance company and the attorney engaged by the insurance company to prosecute its subrogation claim for property damage against one Smith. The claimed malpractice consisted of advising plaintiff to execute a general rather than a limited release of the-subrogation claim. That general.release has been pleaded as a defense in the personal injury action brought by plaintiff against Smith and which is now pending. Since the present action would be barred by limitations if not brought within two years after the act of malpractice (Conklin v. Draper, 254 N. Y. 620) and a dismissal for failure to prosecute is not within the protection of section 23 of