Plaintiffs failed to submit any papers explaining their failure, for a period of 34 months after joinder of issue, to notice the case for trial. Nor did plaintiff file an affidavit of merits. Under the circumstances, there was no basis for the exercise of discretion in plaintiffs' favor ( Fiorello v. Towers Management Corp., 6 A.D.2d 677; Topp v. Casco Prods. Corp., 8 A.D.2d 727; Costanzo v. Schwedler, 14 A.D.2d 814; Siegel v. City of New York, 16 A.D.2d 679). Beldock, P.J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.
From the record it appears that the delay was unwarranted and the plaintiff offered no justifiable excuse for his failure to proceed after the joinder of issue. Moreover, the affidavit of merits was wholly insufficient ( Fiorello v. Towers Management Corp., 6 A.D.2d 677; Lakowitz v. Marlin Gardens, 5 A.D.2d 981; Rist v. 234 East 33rd Corp., 4 A.D.2d 867). The plaintiff did not file a notice of appeal from the order of dismissal dated January 6, 1958, and his failure to do so is fatal to the appeal before us. On the defendant's application, an ex parte order directing the entry of judgment was signed on March 24, 1958, and upon it, judgment was docketed on March 28, 1958. It is from that order and judgment that the plaintiff appeals.
There is no affidavit of merit by the plaintiffs and the reasons for the delay lack merit. The affidavit by an attorney who has no personal knowledge of the facts of the case is entitled to no consideration. ( Birch v. Wolper, 1 A.D.2d 1028 [2d Dept.]; Fiorello v. Towers Management Corp., 6 A.D.2d 677 [1st Dept.]; Sigmund v. House of Cutlery, 7 A.D.2d 565 [1st Dept.].) Plaintiffs' belated filing of a note of issue does not excuse their past neglect in prosecution of the action.
Once undue delay has been established prima facie, a court should indulge a plaintiff only if (1) a satisfactory explanation for the delay has been demonstrated, (2) the merits of the action have been demonstrated by plaintiff himself or one having personal knowledge of the cause of action, and (3) plaintiff's intent to diligently prosecute the action henceforth is established. ( Maizonet v. Lee Properties, 11 A.D.2d 667; Fiorello v. Towers Management Corp., 6 A.D.2d 677; Moebus v. Tishman Co., 5 A.D.2d 786, appeal dismissed 5 N.Y.2d 945; Davis v. Cunard S.S. Co., 284 App. Div. 1036; Armstrong v. Star Co., 154 App. Div. 320.) The calendar condition in Chenango County, where this action is pending, would have permitted this action to have been reached for trial almost four years ago had plaintiff elected to diligently proceed with his case.
Were the excuse for the delay reasonable, the motion would nevertheless be granted as there is no affidavit of merits by the plaintiff Martha Whitton. The affidavit by an attorney who has no personal knowledge of the facts is entitled to no consideration ( Birch v. Wolper, supra; Sigmund v. House of Cutlery, 7 A.D.2d 565; Fiorello v. Towers Management Corp., 6 A.D.2d 677).