Smallen v. Sherman Square Hotel Corp. , 245 N.Y.S.2d 212 ( 1963 )

Order, entered on April 17, 1963, granting defendants’ motion to dismiss personal injury negligence action for failure to prosecute, unanimously affirmed, with costs to respondents. The accident occurred September 27,1959. Action was begun in March, 1960, and issue joined April 28,1960. The last activity occurred on February 2,1961 when the defendants completed the examination before trial of plaintiff. Plaintiff, an 85-year-old woman, slipped on a hotel lobby floor and broke her hip as a result, she claims, of loose plaster on the floor. She seeks recovery in the am mint, of $250,000. The alleged excuse for the delay is that plaintiff, because of cerebral arteriosclerosis, has become mentally confused and her lawyers hope to reactivate the ease when, as and if she should become more lucid. The excuse is insufficient. While there is no affidavit of merits, none is required in view of the detailed testimony given by plaintiff in the examination before trial. The merits, however, are extremely dubious and since the excuse for the delay is insufficient Special Term had no choice but to grant the motion (see Sortino v. Fisher, 20 A D 2d 25). Concur — Breitel, J. P., Rabin, Valente, Stevens and Bergan, JJ.