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JULIUS GOODMAN ET AL. v. R. M. SIWEK REALTY (12/10/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


December 10, 1968

JULIUS GOODMAN ET AL., RESPONDENTS,
v.
R. M. SIWEK REALTY, INC., ET AL., APPELLANTS

Concur -- Steuer, J. P., Capozzoli, McGivern and McNally, JJ.

In this action for alleged fraud, there has been an inordinate delay in prosecution. Issue was joined in 1961. Plaintiffs were precluded for failure to file a bill of particulars on October 11, 1961 and have been in default since that date. The action has never been noticed for trial. The fact that plaintiffs served a notice to examine an officer of defendant corporation, dated April 15, 1968, does not avail plaintiffs in view of their failure to explain their delay, which amounts to an abandonment. That one of the plaintiffs died in 1964 does not explain the delay in prosecution since. This disposition is without prejudice to the rights, if any, of the representatives of the deceased plaintiff.

Disposition

Order entered July 12, 1968, denying motion to dismiss the complaint for failure to prosecute and for other relief, unanimously reversed on the law and facts and in the exercise of discretion and the motion to dismiss the complaint granted, with costs.

19681210

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