Opinion
February 25, 1963
In a negligence action to recover damages for personal injury, loss of services and medical expenses, defendant appeals from an order of the Supreme Court, Queens County, dated September 5, 1962, which denied its motion to dismiss the complaint for lack of prosecution (Civ. Prac. Act., § 181; Rules Civ. Prac., rule 156). Order reversed, without costs, and motion granted. Defendant's motion to dismiss the complaint was made approximately 33 months after joinder of issue. In opposition, plaintiffs failed to submit an affidavit setting forth the merits of their action. Nor did the plaintiffs or their attorneys attempt to explain the unusual delay in the prosecution of the action. An affidavit by one of plaintiffs' attorneys stated merely that a note of issue had been served. Service of the note of issue occurred subsequent to defendant's motion. Upon such a showing there was no adequate basis for the Special Term's exercise of discretion to deny the defendant's motion to dismiss the complaint for lack of prosecution (see Costanzo v. Schwedler, 14 A.D.2d 814). Beldock, P.J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.