Opinion
October 30, 1961
In a negligence action to recover damages for personal injuries and for medical expenses and loss of services, the defendant appeals from an order of the Supreme Court, Queens County, entered March 31, 1960, which denied his motion: (a) to dismiss the complaint for plaintiffs' failure to diligently prosecute the action (Civ. Prac. Act, § 181; Rules Civ. Prac., rule 156); or (b) in the alternative, to preclude the plaintiffs from offering evidence upon the trial by reason of their failure to serve a timely bill of particulars; the denial being upon the conditions that plaintiffs shall serve and file a note of issue for the April 1960 Term and that plaintiffs shall "re-serve" their bill of particulars. Order reversed, without costs, defendant's motion to dismiss the complaint granted, and complaint dismissed. We do not find in this record a proper affidavit of merits or any excuse for the unreasonable delay of some six years in the prosecution of the action. Under the circumstances it was an improvident exercise of discretion on the part of the learned Special Term Justice to deny the motion even conditionally. Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.