Bowman v. Stichman

Order, entered on December 16, 1963, unanimously reversed and vacated, on the law and the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and motion of defendant to dismiss the action for lack of prosecution granted, with $10 costs. The accident, which is the basis of this action for personal injuries, occurred on January 14, 1959, and the action was commenced on May 29, 1961. Issue was joined on June 16, 1961, and a bill of particulars was then demanded of plaintiff. The bill was not served and there were no further proceedings taken in the action. Finally, in January, 1962, plaintiff’s attorney of record was disbarred, and in September, 1962, new attorneys were substituted in his place. But they did nothing toward the processing of the action for trial until August, 1963, when they wrote defendant’s attorneys requesting a copy of the demand for the bill of particulars, saying that they found none in the file. While we do not condone the failure of defendant’s attorneys to respond to this letter and a followup letter, the plaintiff’s affidavits contain no adequate factual explanation for the delay here and in particular for the failure of plaintiff to proceed with reasonable diligence following the retainer on or before September 5, 1962 of the attorneys presently representing her; and her affidavit makes no factual showing of merit. The motion to dismiss should have been granted. (See Sortino v. Fisher, 20 A D 2d 25.) Concur — Breitel, J. P., Valente, Eager, Steuer and Bastow, JJ.