Opinion
October 29, 1964
Order, entered February 27, 1964, denying defendants' cross motion to dismiss plaintiff's action for an accounting, for failure to prosecute, pursuant to CPLR 3216, unanimously affirmed, without costs to any party. The record contains enough to establish that for a substantial period and immediately prior to the making of the cross motion, the action was being actively prosecuted. Under the circumstances there was no prima facie showing of current delay to warrant dismissal, and for that reason too it was not incumbent upon plaintiff to supply an affidavit of merits ( Sortino v. Fisher, 20 A.D.2d 25, 32). Costs are not awarded because plaintiff-respondent improperly included matter in his brief not contained in the record. Settle order on notice fixing date for examination to proceed. Motion for an order directing the withdrawal of respondent's brief dismissed having become academic by virtue of the decision rendered herewith.
Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.