Lasner v. Lefrak Organization, Inc. — 23 Misc. 2d 916

Majority

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Seymour Lasner et al., Respondents, v. Lefrak Organization, Inc., et al., Appellants.

Supreme Court, Appellate Term, Second Department,

January 20, 1960.

Bernard Helfenstein and Jerome Renter for Lefrak Organization, Inc., appellant. Emanuel Morganbesser and Sabina Dia for Poly Construction Co., Inc., appellant. No appearance for respondents.

Order denying the motion of defendant Lefrak Organization, Inc., to dismiss the complaint as to it for failure to prosecute unanimously reversed upon the law, with $10 costs and taxable disbursements, and motion granted. Respondents failed to present facts showing a reasonable excuse for the delay of 20 months after joinder of issue before noticing the case for trial. Counsel’s explanation that the delay was caused by a change of personnel in his office and misplacing of the file does not satisfy the requirements of section 181 of the Civil Practice Act and rule 156 of the Rules of Civil Practice. (Moshman v. City of New York, 3 A D 2d 822 ; Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942 .) In addition, plaintiffs failed to present any showing of merits. (Mancino v. City of New York, 1 A D 2d 830 ; Brassner Mfg. Co. v. Consolidated Edison Co., 1 A D 2d 840 ; Drabik v. Valle, 8 A D 2d 705 .)

Order denying motion of defendant Poly Construction Co., Inc., to dismiss the complaint as to it for failure to prosecute unanimously reversed upon the law, without costs and motion granted, with leave, however, to plaintiffs to apply to vacate such dismissal upon proper papers including an adequate affidavit of merits by plaintiffs. While there were extenuating

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circumstances sufficient to excuse plaintiffs’ delay with regard to this defendant, plaintiffs’ failure to submit an affidavit of merits required the granting of defendant’s motion.

Concur — Hart, Di Giovanna and Brown, JJ.

Order reversed, etc.