Opinion
October 29, 1970
Appeal from the Monroe Special Term.
Present — Del Vecchio, J.P., Witmer, Gabrielli, Moule and Bastow, JJ.
Order unanimously reversed, without costs, and motion granted. Memorandum: This is an appeal from an order denying the defendants' motion to dismiss the complaint for unreasonable neglect to proceed with the action. The accident giving rise to this action occurred on July 27, 1965 when it is alleged that plaintiff fell from a defective ladder furnished by defendant Peter Blad. A summons alone was served on August 16, 1966 and on August 23, 1966 a notice of appearance and demand for complaint was served on plaintiff's attorney. No complaint having been served, on April 16, 1967 a letter was sent to the attorney requesting service of the complaint within ten days and advising that if this were not done a motion to dismiss the action under CPLR 3012 would be made. On May 10, 1967 notice of such motion, returnable June 5, was served. Thereafter an unverified complaint was served which was rejected and returned, but after some correspondence the complaint was accepted and the motion withdrawn. Issue was joined by service of an answer on June 22, 1967 with a demand for a bill of particulars. More than two years later, on July 15, 1969, with the bill of particulars still unserved, defendants' attorneys served by certified mail upon plaintiff's attorney a 45-day notice demanding that plaintiff resume prosecution of the action and serve and file a note of issue within the 45-day period and advising that failure to comply with the demand would serve as the basis for a motion to dismiss for unreasonable neglect to proceed pursuant to CPLR 3216. Despite the notice, plaintiff failed to serve a bill of particulars and did not comply with the demand. On September 9 defendants made the present motion to dismiss returnable at a Special Term in Rochester on September 29. The notice of motion required plaintiff to serve all answering affidavits and other papers to be used in opposition to the motion at least five days prior to the return date, as authorized by CPLR 2214 (subd. [b]). Notwithstanding this specific reminder of the need for service of opposing papers, no such papers were served showing either compliance with the 45-day notice or justifiable excuse for the delay and the existence of a good and meritorious cause of action. Plaintiff's failure to comply with the demand to resume prosecution of the action or, in the alternative, to produce papers in opposition to the motion to dismiss setting forth an adequate statement justifying his delay of more than two years in prosecuting the claim together with an affidavit of merit required a dismissal of the action. ( Rauchwerg v. Gimbel's Inc., 34 A.D.2d 924; Di Lisio v. Muto, 30 A.D.2d 633; Milazzo v. Barnaby Concrete Corp., 30 A.D.2d 802.) This court has said: "For several years we have condemned tardiness and made it clear that one asking for excuse for great delay in prosecution comes with a heavy burden of explanation ( Goldstein v. Wickett, 3 A.D.2d 135; Walker v. Ferri, 5 A.D.2d 24; Nicotera v. Aliasso, 22 A.D.2d 758; Gino v. Syracuse Mem. Hosp., 23 A.D.2d 964)." ( Hamilton v. Dudley, 27 A.D.2d 701.) As in Hamilton, the record "discloses inexcusable neglect" upon the part of plaintiff's attorney and makes appropriate a reiteration of this department's position, stated in Walker v. Ferri ( 5 A.D.2d 24, 25) that it "cannot condone or overlook great delay as in the instant case". As the record stands in this court, plaintiff has offered no excuse whatsoever for his inordinate and inexcusable delay in the prosecution of this action now more than five years old, and there was no basis upon which Special Term could have denied the motion to dismiss in the face of the 45-day notice. ( Ostberg v. Warren Webster Company, 27 A.D.2d 983.)