Opinion
July 9, 1973
In an action to recover damages inter alia for alleged malicious prosecution, defendant Joseph Guttman appeals from an order of the Supreme Court, Suffolk County, entered January 24, 1972, which, in granting his motion to dismiss the complaint as against him, pursuant to CPLR 3216 and for unreasonably neglecting to prosecute the action, did so only conditionally, i.e., in the event plaintiffs failed to serve the original executed transcript of the pretrial deposition of plaintiff Robert L. Cahn, together with a note of issue, within a stated period of 60 days. Order modified, in the exercise of discretion, by striking from the decretal paragraph everything following the words that the motion is "granted in all respects". As so modified, order affirmed, with $20 costs and disbursements to appellant. Plaintiffs did not comply with the 45-day notice provision of CPLR 3216 and also failed to establish a justifiable excuse for the delay in prosecuting the action, which was commenced in 1967 ( Jacobs v. Chemical Bank of N.Y. Trust Co., 38 A.D.2d 701; De Masi v. Carrozza, 38 A.D.2d 586). Nor did they submit an affidavit from either plaintiff Robert L. Cahn or his physician, deposing the facts and limitations concerning his alleged illness during the two-year period of inactivity ( Maestros v. Huntington Sta. Food Shop, 41 A.D.2d 774). Moreover, no affidavit of merits was submitted ( Keating v. Smith, 20 A.D.2d 141, 141-42; Sortino v. Fisher, 20 A.D.2d 25, 32). Accordingly, it was an improvident exercise of discretion not to have unconditionally granted the motion to dismiss. Munder, Acting P.J., Latham, Shapiro, Christ and Benjamin, JJ., concur.