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eBook details

• Title: Ruth Schuman v. Hertz Corporation Et Al.
• Author : Supreme Court of New York
• Release Date : January 18, 1965
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 58 KB

Description

Order, entered on August 27, 1964, denying appellants' motion to dismiss the complaint on the ground that the action is barred by the Statute of Limitations, unanimously reversed, on the law, with $30 costs and disbursements to appellants, and the motion to dismiss the complaint granted, with $10 costs. Plaintiff contends that this action is not time-barred because it was commenced within the additional six-month period afforded by CPLR 205. That section permits the commencement of a new action within six months after the termination of a prior action where such termination results, inter alia, other than from ""a dismissal of the complaint for neglect to prosecute the action"". The circumstances surrounding the dismissal of the complaint in the prior action are such as to compel a conclusion that the dismissal was occasioned by a ""neglect to prosecute."" The plaintiff's willful refusal to comply with the court's direction to select a jury and to proceed to trial permits of no other result. If indeed there were circumstances which may have warranted the granting of an adjournment to the plaintiff, the propriety of the court's refusal to do so could have been reviewed upon an appeal from the order which was subsequently entered denying plaintiff's application for restoration. That question, however, is not open to us for review on this appeal. Concur - Rabin, J.P., Valente, Stevens, Eager and Steuer, JJ.

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