Opinion
April 16, 1962
In an action to recover damages for personal injuries, medical expenses and loss of services, each defendant appeals as follows from a separate order of the Supreme Court, Kings County: (1) Defendant Miskoff appeals from an order, dated October 11, 1961, which denied his motion to dismiss the complaint for plaintiffs' lack of prosecution, on condition that plaintiffs notice the case for trial for the December 1961 Term; (2) defendant City of New York appeals from an order dated October 17, 1961, which granted plaintiffs' motion to open their default upon a prior motion by the defendant city to dismiss the complaint for plaintiffs' lack of prosecution, and which denied the city's said motion on condition that plaintiffs notice the case for trial for the December 1961 Term. Orders reversed, with one bill of $10 costs and disbursements to each defendant; and the motion of each defendant to dismiss the complaint is granted. Plaintiffs failed adequately to explain or show reasonable excuse for the delay of three years and nine months since joinder of issue in bringing the cause on for trial. Plaintiffs also failed to make a sufficient showing of merits. Under such circumstances, it was an improvident exercise of discretion not to grant unconditionally the respective motions to dismiss ( Topp v. Casco Prods. Corp., 8 A.D.2d 727, appeal dismissed 7 N.Y.2d 742; Lange v. Bagish, 285 App. Div. 833). Beldock, P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.