Opinion
April 8, 1960
Sherry Auerbach for plaintiffs.
Jesse S. Richman for defendant.
Motion to dismiss the cause of action for neglect of prosecution granted.
The summons was served in May, 1958. A notice of appearance was served on June 5, 1958. No complaint was served prior to the service of the motion papers herein. On January 5, 1959 the defendant, by stipulation in writing, agreed to extend the plaintiffs' time to serve a complaint until January 31, 1959.
The excuse offered for the delay is twofold: (1) that the plaintiffs' attorney attempted to obtain a settlement, and (2) that the file was inadvertently mislaid. Neither excuse has merit. There are no factual allegations to show that the defendant was at all responsible for the delay, and the last communication with the defendant's attorney was in January, 1959 ( Birch v. Wolper, 1 A.D.2d 1028 [2d Dept.]; Trapani v. Samuels, 3 A.D.2d 861 [2d Dept.]). It has also been held that it is not a reasonable excuse to claim the file was mislaid ( Moshman v. City of New York, 3 A.D.2d 822).
Were the excuse for the delay reasonable, the motion would nevertheless be granted as there is no affidavit of merits by the plaintiff Martha Whitton. The affidavit by an attorney who has no personal knowledge of the facts is entitled to no consideration ( Birch v. Wolper, supra; Sigmund v. House of Cutlery, 7 A.D.2d 565; Fiorello v. Towers Management Corp., 6 A.D.2d 677).