Opinion
December 10, 1951.
Order denying defendant's motion to dismiss the complaint for unreasonable neglect to proceed in the action reversed on the law and the facts, with $10 costs and disbursements, and motion granted, with $10 costs. Plaintiff has not appeared upon this appeal nor filed any brief in support of the denial of the motion to dismiss. In our opinion the plaintiff on this record has failed to show any reasonable explanation or excuse for failure to bring the action to trial for almost three years after joinder of issue and has failed to present any showing of merits. Under such circumstances, denial of the motion to dismiss was an improvident exercise of discretion. ( Giovannucci v. Brooklyn Richmond Ferry Co., 278 App. Div. 861, and cases there cited; McIntyre v. Branner, 214 App. Div. 145.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.