Arcoleo v. Negenten Realty, Inc. , 224 N.Y.S.2d 870 ( 1962 )

Plain tiff-appellant, however, in the exercise of discretion, is granted leave to move to vacate such dismissal within 30 days after service of the order entered 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 plaintiff, including this appeal, to be charged to and paid by attorney for plaintiff. The delay is hardly excusable because, despite the complicated tribulations narrated in his affidavit, plaintiff’s attorney had ample opportunity as well as the obligation to attend to his practice. However, because the action is not of very great age and involves such unfortunate circumstances surrounding the accident the alleged merit of the claim, arguably, should not be summarily determined by dismissal. This case, then, affords occasion for a conditional but cautious departure from the firm policy of this court with respect to delays in prosecution, as was done in Keenan v. Waring (12 A D 2d 601). Concur — Botein, P. J., Breitel, Valente, McNally and Eager, JJ.