Opinion
May 4, 1959
In an action to recover damages for personal injuries, the appeal is from an order which denied appellant's motion to dismiss the complaint for respondent's unreasonable neglect to prosecute the action. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Respondent failed to present facts showing any reasonable excuse for his delay of more than three years after joinder of issue in bringing the cause on for trial, or to make an adequate, if any, showing of merits. The motion therefore should have been granted in the exercise of discretion even though respondent filed and served a note of issue after the notice of motion to dismiss had been served. ( Brassner Mfg. Co. v. Consolidated Edison Co. of N Y, 1 A.D.2d 840 and cases cited therein.) Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.