Opinion
October 25, 1962
Order, entered on March 13, 1962, denying motion by defendant to dismiss Action No. 1 for failure to prosecute, unanimously reversed on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion granted, with $10 costs, and Actions Nos. 2 and 3 remanded to the Civil Court. The plaintiff has failed to present any reasonable excuse for the delay in bringing this case on for trial, and has not shown that he has a meritorious cause of action. The conclusory statement by plaintiff that he was injured "as a result of the negligent operation by the defendant of his motor vehicle", without the setting forth of any facts to support such conclusion, is entirely unsatisfactory to show merit. The court has repeatedly held that a plaintiff, in defense of an apparently well-grounded motion to dismiss for lack of prosecution, must "establish by evidentiary facts the merits of the cause of action." ( Gallagher v. Claffington, 7 A.D.2d 627. ) Settle order on notice.
Concur — Botein, P.J., Breitel, Valente, McNally and Eager, JJ.