Opinion
March 28, 1966
In an action to recover damages for personal injury by reason of assault, defendants appeal from an order of the Supreme Court, Kings County, entered August 25, 1965, which, inter alia (1) conditionally denied their motion to dismiss the complaint for neglect to prosecute; and (2) conditionally granted plaintiff's motion for leave to serve and file a note of issue and statement of readiness and to reserve the right subsequently to conduct certain pretrial examinations. Order reversed, without costs; defendants' motion to dismiss the complaint granted; plaintiff's motion denied; and complaint dismissed, without costs. Pursuant to CPLR 3216, defendants duly served upon plaintiff's attorney a written demand that within 45 days plaintiff serve and file a note of issue. Plaintiff failed to comply with such demand. In our opinion, the 29-month delay in the prosecution of the action is not excusable on the ground that plaintiff had moved and did not notify his attorneys of his new address ( Olsen v. Knittle, 20 A.D.2d 705; Sortino v. Fisher, 20 A.D.2d 25, 29). Furthermore, plaintiff has not sustained his burden of showing that the cause of action has merit ( Keating v. Smith, 20 A.D.2d 141). Under the circumstances, it was an improvident exercise of discretion to deny defendants' motion to dismiss. Beldock, P.J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.