Keenan v. Waring , 208 N.Y.S.2d 484 ( 1960 )

Order, entered August 25, 1960 dismissing for lack of prosecution certain causes of action in behalf of adult plaintiffs in personal injury negligence action unanimously affirmed, with $50 costs and disbursements to the respondent. Plaintiffs-appellants, however, are granted leave to move to vacate such dismissal as to them within 30 days after service of the order herein with notice of entry, upon tender and payment of $250 additional costs, together with payment of the costs and disbursements taxable to date in the action against such plaintiffs, including this appeal, to be charged to and paid by attorneys for plaintiffs. While the delay appears inexcusable, the circumstances in which the infant plaintiffs may proceed with the action, and the adults cannot, presents an anomaly that perhaps should be avoided. Moreover, if, as plaintiffs aver, without contradiction on this motion, the accident occurred as it did, then there is unusual merit to their claims, and the delays can only be the responsibility of their lawyers. On these extraordinary circumstances the firm policy of this court with respect to delays in prosecution should he conditionally but cautiously relented (see Tripp, A Guide to Motion Practice [Rev. ed.], § 20, but especially the cases collected in the 1960 Cumulative Supp.; cf. Kanare v. City of New York, 6 A D 2d 696; but see, also, 23 Carmody-Wait, New York Practice, p. 135, § 107). Concur — Botein, P. J., Breitel, Stevens, Eager and Noonan, JJ.