Thalassinos v. Brutsche , 17 A.D.2d 835 ( 1962 )

In a negligence action to recover damages for injury to person and property, defendant Brutsche appeals from an order of the Supreme Court, Westchester County, dated December 1, 1961, which denied his motion to dismiss the complaint as to him for lack of prosecution (Rules Civ. Prae., rule 156). Such denial was conditioned upon the service and filing by plaintiff of a note of issue for a subsequent term of the court. Order affirmed, with $10 costs and disbursements. In our opinion, the plaintiff has made a prima facie showing of merit. The moving affidavit by counsel for said defendant Brutsehe made no claim of prejudice by reason of the delay. Moreover, it appears the motion to dismiss was not made until after the running of the Statute of Limitations. Beldock, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.