Rosenstein v. Rothenberg

The order and judgment appealed from are reversed on the facts and in the exercise of discretion, without costs to either party, and the motion to dismiss denied upon the condition that a note of issue be filed immediately for the next succeeding term of court. This action, commenced in 1957, should have been concluded and its speedy termination now becomes imperative particularly in view of the existing attachment. The leisurely pace of the proceedings to date as exemplified by the conduct of counsel in pretrial proceedings persuades us there was no unreasonable neglect to prosecute (Civ. Prac. Act, § 181) nor any abandonment of the action. Also, Special Term indicated possible merit to the claim. Ample opportunity having been afforded the parties for steps preliminary to the trial, and pretrial proceedings having been concluded, further delay of course would be inexcusable. Concur — Botein, P. J., Breitel, McNally, Stevens and Bastow, JJ.