Maizonet v. Lee Properties, Inc. , 201 N.Y.S.2d 751 ( 1960 )

Order, denying motion to dismiss complaint for failure to prosecute, dated February 10, 1960, unanimously reversed, on the law and on the facts, and in the exercise of discretion, with $20 costs and disbursements to defendants-appellants, and the motion granted, with $10 costs. Neither the belated filing of the note of issue nor the vague allegations regarding settlement discussions excuses the 28-month delay (Nigro v. City of New York, 3 A D 2d 987; cf. Trapani v. Samuels, 3 A D 2d 861). Moreover, no affidavit of merit was submitted in opposition to the motion (Gallagher v. Clafmgton, Inc., 7 A D 2d 627). Concur — Breitel, J. P., Rabin, Yalente and Bergan, JJ.