Cassieri v. Houston Motors Auto Leasing, Inc.

Order, entered July 10, 1961, insofar as it denies a motion to dismiss the complaint for failure to prosecute, unanimously reversed, on the law and on the facts, and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion to dismiss the complaint granted, with $10 costs. This action was brought to recover for personal injuries and property damage alleged to have been caused by negligence in the operation of an automobile owned by the defendant. The accident occurred on May 11, 1957 and the summons was not served until May 10, 1960. Thereafter, on May 18> 1960, the defendant served a notice of appearance and a demand for the complaint, but the complaint was not served until May 22, 1961. The inordinate delay in the service of the complaint is not sufficiently explained, and the plaintiffs do not submit any affidavits tending to show that they do in fact have a meritorious cause of action. Under the circumstances, it was an improvident exercise of discretion to deny the motion to dismiss the action for the unreasonable neglect of plaintiff to proceed with the .prosecution thereof. (Civ. Prac. Act, § 181; cf. Threewitts v. Almcmzar, 11 A D 2d 981; Gray v. Yale Transp. Corp., 11 A D 2d 1072; Randolph v. Gotham Constr. Corp., 12 A D 2d 478; Wavrovics v. City of New York, 13 A D 2d 738.) Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.