Opinion
September 17, 1964
Order, entered April 1, 1964, unanimously modified, on the law and the facts, and in the exercise of discretion, with $30 costs and disbursements to the appellant, to dismiss unconditionally this action for failure of diligent prosecution, and defendant's motion in all respects granted, without costs. Appeal from order entered May 20, 1964, dismissed, without costs, as academic. The accident, which was the basis of the personal injury action, occurred on or about February 28, 1957; the action was commenced on February 13, 1958 and issue was joined on March 23, 1960. Plaintiff delayed until January, 1962 to obtain an order for issuance of a commission to take the testimony of certain physicians in Germany and France with reference to the alleged injuries sustained by plaintiff, and, as of the time of the making of the original motion to dismiss (Feb. 28, 1964), the testimony under the interrogatories issued to the witnesses in Germany had not been completed. The "duty of prosecuting the action rests on the one who brings it" and the plaintiff has not presented a reasonable excuse for failure to proceed diligently with the prosecution of this action ( Sortino v. Fisher, 20 A.D.2d 25, 30). In fact, it appears from the affidavits that the delay in prosecution here is due at least in part to the neglect of the plaintiff himself who allegedly resides in Germany. He neither responded in answer to a recent communication from his attorneys nor submitted any affidavit explaining the inordinate delay in procuring the testimony of his doctors in Germany.
Concur — Breitel, J.P., Valente, McNally, Eager and Steuer, JJ.