Opinion
May 27, 1963
In a negligence action to recover damages for personal injury, defendant appeals from so much of an order of the Supreme Court, Queens County, dated December 10, 1962, as conditioned the granting of its motion to dismiss the complaint for lack of prosecution (Civ. Prac. Act, § 181; Rules Civ. Prac., rule 156) upon the plaintiff's failure to serve and file a note of issue for a subsequent term of the court. Defendant contends that its motion to dismiss should have been granted unconditionally. Order, insofar as appealed from, reversed, without costs; the condition as to the filing of the note of issue is deleted; the defendant's motion is granted unconditionally; and the complaint is dismissed. Plaintiff failed to justify the delay herein or to show that it was reasonable; nor did plaintiff attempt to do so. Upon that state of the record, it was an improvident exercise of discretion for the Special Term Justice to refuse to grant unconditionally the defendant's motion to dismiss the complaint for lack of prosecution ( Costanzo v. Schwedler, 14 A.D.2d 814). Beldock, P.J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.