Opinion
July 11, 1960
In an action to recover damages for assault, the plaintiff appeals from an order of the Supreme Court, Dutchess County, dated December 15, 1959, granting defendant's motion to dismiss the complaint for failure diligently to prosecute the action, pursuant to rule 156 of the Rules of Civil Practice. Order reversed, without costs, and motion denied. It appears from the record that, prior to the service of the amended complaint in 1957, much of the delay was due to the fact that it takes from 2 to 3 years to properly determine the extent of the results or the success of the brain surgery performed upon plaintiff by reason of the injuries attributable to the assault. Plaintiff filed a note of issue and statement of readiness in 1958, and thereafter, in the Fall of 1959, there was a pretrial settlement conference. Furthermore, in November, 1959, shortly before the bringing of this motion, defendant served a demand for a bill of particulars. In view of the unusual circumstances of this case, and in view of the fact that defendant has not shown prejudice by reason of the delay, the complaint should not have been dismissed. Nolan, P.J., Beldock, Ughetta, Christ and Pette, JJ., concur.