Opinion
March 28, 1955.
In an action to recover damages for personal injuries, the appeal is from an order granting the motion of defendant City of New York to dismiss the complaint for lack of prosecution, unless the case be placed on the calendar for the next available term. Order modified by striking from the ordering paragraph everything following the word "granted". As thus modified, order affirmed, with $10 costs and disbursements to appellant. Respondents failed to explain or excuse the delay of more than forty-one months in bringing the case on for trial. On the facts disclosed by the record, appellant was entitled to dismissal of the complaint without condition, and it was an improvident exercise of discretion to deny appellant such relief. ( Lange v. Bagish, 285 App. Div. 833; Beer-Meisel Lodge No. 8 Ind. Order Brith Abraham v. Herschbein, 270 App. Div. 847.) MacCrate, Acting P.J., Schmidt, Beldock, Murphy and Ughetta, JJ., concur.