Drabik v. Valle

Order unanimously reversed on the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and defendant’s motion to dismiss the complaint for lack of prosecution is granted, with $10 costs. The clerk is directed to enter judgment accordingly. No adequate excuse was presented for the delay of more than three years to file a note of issue until the motion was made to dismiss. Moreover, coupled with the inadequate excuse is the failure to submit any affidavit of merits by the plaintiff. Under the circumstances, Special Term should have dismissed the complaint unconditionally. Concur — -Botein, P. J., Rabin, Valente, McNally and Stevens, JJ.