Appellate Terms of the Supreme Court of New York, 1967

Whitney v. Bohack Food Stores

Appellate Terms of the Supreme Court of New York · Decided May 24, 1967

53 Misc. 2d 1022; 280 N.Y.S.2d 919; 1967 N.Y. Misc. LEXIS 1503

Counsel

Marvin, Montfort, Healy, McGuire & Salley {E. Richard Rimmels, Jr., of counsel), for appellant. Shepps, Saltsman & Haber {William B. Saltsman of counsel), for respondent.

Opinion of the Court

Per Curiam.

In view of plaintiff’s failure to present any excuse for the lack of prosecution and an affidavit of merits, her motion should have been denied (CPLR, 5015, subd. [a], par. 1; *1023Keating v. Smith, 20 A D 2d 141). Rule 14 of the Nassau County District Court Rules, authorizing the dismissal of an action which remains on the general calendar for more than a year without a notice of trial being filed, has its counterpart in CPLR 3404 and is not inconsistent with the provisions of CPLR 3216.

The order should be unanimously reversed, with $10 costs to defendant, and motion to vacate order dismissing action denied, with leave to plaintiff to renew upon proper papers within 30 days after service of a copy of the order hereon.

Concur — Martuscello, Groat and Coyle, JJ.

Order reversed, etc.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.