Opinion
October 4, 1971
In a negligence action to recover damages for personal injuries and loss of consortium, defendant Golder appeals from an order of the Supreme Court, Nassau County, dated July 26, 1968, which denied his motion for an order dismissing the action for failure to prosecute. Order reversed, without costs, on the law and the facts and in the exercise of discretion; motion granted unconditionally; and complaint dismissed. Plaintiffs failed to serve and file a note of issue notwithstanding the service upon them of a demand, pursuant to CPLR 3216, as amended, that they do so within 45 days. The excuse that the attorney handling the matter had died is insufficient, as his death occurred some 42 months after the joinder of issue (during which time no pretrial proceedings were had) and four and one-half months prior to the service of the 45-day demand. Plaintiffs' offer to have the matter transferred to the District Court did not, under the circumstances, amount to compliance with CPLR 3216 (see Reilly v. Otis Elevator Co., 20 A.D.2d 530). The unexcused delay, combined with the failure to submit an affidavit of merits, entitles appellant to an unconditional dismissal of the complaint ( Pernise v. Di Giacomo, 25 A.D.2d 447). Rabin, P.J., Hopkins, Munder, Latham and Christ, JJ., concur.