Swirsky v. Emanuel Arms, Inc. , 245 N.Y.S.2d 201 ( 1963 )

Order, entered on January 15, 1963, denying defendant’s motion to dismiss personal injury negligence action for failure to prosecute, unanimously reversed on the law, the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs. The accident occurred September 12, 1959. Action was begun July 9, 1960 and issue was joined September 27, 1960. The only activity since then occurred on August 13, 1962 when a bill of particulars was served. At the time this motion to dismiss was made in October, 1962, no note of issue had as yet been filed. Nothing in the record discloses the underlying facts giving rise to the action, except a statement that it is for Avrongful death “ caused by the negligence of the defendant in the operation, management and control of his premises.” Plaintiff submits no affidavit of merits, with respect to this four-year-old accident, and feebly attempts to excuse the delay by asserting that time was necessary to investigate the facts in order to prepare the bill of particulars and to afford defendant sufficient time to examine plaintiff before trial. Since there is no sufficient excuse and no affidavit of merits, the motion to dismiss should have been granted (see Sortino v. Fisher, 20 A D 2d 25). Concur — Breitel, J. P., Rabin, Valente, Stevens and Bergan, JJ.