Opinion
May 28, 1976
Appeal from the Erie Supreme Court.
Present — Moule, J.P., Mahoney, Dillon, Goldman and Witmer, JJ.
Order unanimously reversed, without costs, motion denied; cross motion granted and complaint dismissed. Memorandum: This case has virtually the same history as Miner v Merrell Co. ( 52 A.D.2d 1080). On October 28, 1971 we affirmed an order which granted defendants' motion for a protective order ( 37 A.D.2d 923). Despite that determination, plaintiff permitted the case to remain dormant on the general docket for four more years before moving to restore it for trial. The courts cannot tolerate such indifference to the need for expeditious prosecution of actions (see Miner v Merrell Co., supra).