Opinion
July 6, 1961
Order entered on November 4, 1960, granting defendant's motion to dismiss the complaint for failure to prosecute unless plaintiff serves and files a note of issue for the January 1961 Term of the Supreme Court, Bronx County, unanimously modified, on the facts and in the exercise of discretion, so as to dismiss the complaint unconditionally, with $10 costs, and, as so modified, affirmed, with $20 costs and disbursements to appellant, and judgment directed to be entered in favor of defendant dismissing the complaint, with costs. The inactivity in this case for a period of over two years until new attorneys were substituted has not been sufficiently explained or excused. That the substituted attorneys acted as expeditiously as circumstances permitted cannot excuse the prior delay. ( Hardware Mut. Cas. Co. v. Rosenberg, 3 A.D.2d 988.) In the absence of a reasonable excuse, the complaint should have been dismissed unconditionally.
Concur — Breitel, J.P., Rabin, Valente, McNally and Stevens, JJ.