Opinion
October 30, 1961
In an action by plaintiff to recover damages for injuries to person and property, allegedly caused by the collision of two motor vehicles, the defendant appeals from an order of the Supreme Court, Suffolk County, entered November 4, 1960, which denied his motion, made pursuant to rule 156 of the Rules of Civil Practice, to dismiss the complaint for lack of prosecution. Order reversed, with $10 costs and disbursements, and motion granted. Defendant's motion to dismiss was made some 15 months after the joinder of issue. In opposition to the motion, plaintiff submitted only the affidavit of his attorney stating that a bill of particulars and a note of issue had just been served. No affidavit setting forth the merits of the action was submitted; and no attempt was made to explain or justify the delay or to show that it was not unreasonable. In our opinion, upon such a showing there was no basis for the exercise of discretion to deny the motion to dismiss. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.