Opinion
278 A.D. 861 104 N.Y.S.2d 809 MICHAEL GIOVANNUCCI, Respondent, v. BROOKLYNs&sRICHMOND FERRY CO., INC., Appellant. Supreme Court of New York, Second Department. May 28, 1951
In an action to recover damages for personal injuries, defendant appeals from an order which denied its motion to dismiss the complaint for plaintiff's unreasonable neglect to prosecute the action. Order reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, with $10 costs. Plaintiff failed to explain or excuse the delay of more than four years in bringing the cause on for trial and failed to make any showing of merits. Under such circumstances, it was an improvident exercise of discretion to deny the motion to dismiss ( Fischer v. Tushnett, 256 A.D. 833; Beer-Meisel Lodge No. 8, Independent Order Brith Abraham v. Herschbein, 270 A.D. 847; Village of Ardsley v. Aetna Cas.s&sSur. Co., 274 A.D. 1075; Maraynes v. Orseck Boys, Inc., 274 A.D. 1070), even though plaintiff had filed and served a note of issue after the notice of motion to dismiss had been served. ( Fisher Malting Co. v. Brown, 92 A.D. 251; Sayers v. Leypoldt, 190 A.D. 949.)
Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.