Fiorello v. Towers Management Corp. , 173 N.Y.S.2d 849 ( 1958 )

Order unanimously reversed on the facts and as a matter of discretion, with $20 costs and disbursements to the appellant, and the motion granted, with $10 costs, and judgment is directed to be entered dismissing the complaint. This determination is without prejudice to an application by plaintiff-respondent for appropriate relief on proper papers, including an affidavit of merits by the plaintiff, and upon payment of the costs on this appeal and the costs incident to the dismissal of this action. We have repeatedly held that to successfully resist a motion of this kind plaintiff must submit papers demonstrating a reasonably substantial excuse for the failure to prosecute buttressed by an affidavit of merits by the plaintiff. The record in this case fails to disclose any affidavit of merits. (Rist v. 234 East 33rd Corp., 4 A D 2d 867; Fischetti v. 242 East 19th St. Corp., 4 A D 2d 867.) Concur — Botein, P. J., Rabin, McNally, Stevens and Bergan, JJ.