Opinion
February 3, 1964
In an action to recover damages for personal injury, defendant appeals from an order of the Supreme Court, Queens County, dated October 25, 1963, which denied its motion to dismiss the complaint for lack of prosecution, pursuant to rule 3216 of the Civil Practice Law and Rules. Order reversed, without costs; motion to dismiss granted; and complaint dismissed, without costs. In our opinion the proffered explanation by plaintiff's attorney that in the course of the removal of his office the file was misplaced, is insufficient to excuse the 52-month delay in the prosecution of the action ( Burke v. City of New York, 18 A.D.2d 898 and cases there cited). In addition, the record discloses a complete absence of a showing of merit. Under the circumstances, it was an improvident exercise of discretion to deny the motion ( Keating v. Smith, 20 A.D.2d 141; Constanzo v. Schwedler, 14 A.D.2d 814; Stein v. West Sayville Pharmacy, 18 A.D.2d 697). Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.