[DOWNLOAD] "Thomas Moran v. Richard Rynar" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Thomas Moran v. Richard Rynar
- Author : Supreme Court of New York
- Release Date : January 01, 1972
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
[39 A.D.2d 718 Page 718] 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 1/2 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 dismiss 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 [39 A.D.2d 718 Page 719]