39 A.D.2d 718 | N.Y. App. Div. | 1972
In a negligence action to recover damages for personal injuries, defendant Rynar appeals from an order of the Supreme Court, Bangs County, dated August 23, 1971, which (1) granted plaintiff’s motion to reargue a prior motion by said defendant to dismiss the complaint because of plaintiff’s failure to serve and file a note of issue and (2) thereupon granted said motion to dismiss the complaint unless plaintiff would file a note of issue within five days after service of said order with notice of entry. Order modified) by adding thereto a provision imposing $250 costs on plaintiff’s attorney, personally, payable to appellant; as so modified, order affirmed, without costs. Plaintiff, a passenger on defendant Rynar’s motorcycle, was seriously injured when the motorcycle ran into the rear of defendants Llinas’ truck. The action was started on February 4, 1969. On January 30, 1970, pretrial examinations of plaintiff and Rynar were had and at that time there were settlement discussions between counsel. The transcripts of the examinations were completed in early March, 1970. On June 1, 1970 plaintiff’s attorney joined a Bronx law firm and during the next few months he was engaged in moving his files from his former Manhattan office to his new office in the Bronx. On June 22, 1970 (about 15 months after joinder of issue and 3% months after transcription of the pretrial examinations and while plaintiff’s attorney was still in the process of moving his office to the Bronx), Rynar served a 45-day notice demanding that plaintiff file a note of issue. Plaintiff’s attorney states that this notice never came to his personal attention because of the upset conditions in his office and that for that reason he failed to file a note of issue within the 45-day period. On August 17, 1970 (11 days after expiration of the 45-day period), Rynar moved to dismiss the complaint for lack of prosecution. The motion was adjourned from time to time until February, 1971; while it was pending, plaintiff’s attorney contacted Rynar’s attorney several times concerning a possible settlement of the case, but the discussions proved fruitless. On this record, and after reargument, Special Term granted the motion to digmiaa unless plaintiff would file a note of issue within five days after service of the order thereon with notice of entry. Rynar urges that the dismissal should have been unconditional and that plaintiff should not have been given an opportunity to save the action from dismissal by then filing a note of issue. We disagree and see no abuse of discretion by Special Term in that regard. A proper exercise of discretion in cases like this requires a balanced consideration of all relevant factors, including the merit or lack of merit in the action, seriousness of the injury, extent of the delay, excuse for the delay, prejudice