Opinion
March 28, 1961
Order, entered on January 11, 1961, denying motion to dismiss the complaint for failure to prosecute, unanimously reversed, on the law and on the facts, and as a matter of discretion, with $20 costs and disbursements to the appellant, and the motion to dismiss the complaint granted, with $10 costs. The excuse offered for the delay of 20 months in placing the case on the calendar after issue was joined was not credibly explained. It was, in fact, belied by the immediate action taken in so placing it upon receipt of the motion papers on this motion. The situation relied on for an excuse, namely, that the plaintiff was out of the State, did not change. The facts indicate a practical abandonment of the action.
Concur — Breitel, J.P., Valente, McNally, Steuer and Bastow, JJ.