Opinion
June 21, 1965
In a negligence action to recover damages for personal injury, the defendants appeal from an order of the Supreme Court, Westchester County, entered December 22, 1964, which granted conditionally their motion to dismiss the complaint for lack of prosecution. Order reversed, without costs; motion granted unconditionally and complaint dismissed, without costs. Pursuant to CPLR 3216 as amended, defendants duly served upon plaintiff's attorneys a notice demanding that within 45 days plaintiff file a note of issue. Plaintiff failed to comply with such demand. In our opinion, the excuses offered by the plaintiff did not justify the delay in prosecuting the action ( Heller v. Josephthal Co., 21 A.D.2d 872; Sortino v. Fisher, 20 A.D.2d 25, 29). The inadequacy of those excuses, combined with the failure to submit an affidavit of merits, entitled defendants to an unconditional dismissal of the complaint ( Keating v. Smith, 20 A.D.2d 141; Sortino v. Fisher, supra). Beldock, P.J., Ughetta, Hill, Rabin and Benjamin, JJ., concur.