Roe v. Kurkhill , 174 N.Y.S.2d 573 ( 1958 )

In an action to recover damages for breach of contract, and for other relief, the appeal is from an order denying appellants' motion to dismiss the complaint for lack of diligent prosecution. Order reversed, with $10 costs and disbursements, and motion granted, without costs. Respondent failed to present a reasonable excuse for the delay of over five years in bringing the action on for trial and failed to present facts showing merit in his action. The denial of the motion was therefore an improvident exercise of discretion (Cooperman v. Princeton Realty Corp., 3 A D 2d 850; Moebus v. Paul Tishman Co., 5 A D 2d 786). Furthermore, the action having been marked off the calendar and not restored within one year thereafter is to be deemed abandoned and the complaint dismissed for failure to prosecute (Rules Civ. Prac., rule 302). Nolan, P. J., Wenzel, Beldock, Murphy and Hallinan, JJ., concur.