Gruber v. Grand Boulevard & Concourse Co.

Order entered January 8, 1962, granting plaintiff’s motion to reargue and upon such reargument denying defendant’s motion to dismiss the action for failure to prosecute, unanimously modified, on the law, the facts, and in the exercise of discretion, with $20 costs and disbursements to appellant, to the extent of adhering to the original decision which had granted the motion to dismiss. The purported affidavits of merits submitted on plaintiff’s behalf do not satisfactorily *803allege facts indicating a meritorious cause of action. This failure is emphasized by the circumstance that upon later reargument defendant urged the absence of an adequate showing of merit upon the first motion to dismiss for lack of prosecution, and nevertheless no further facts were set forth. Concur — Botein, P. J., Breitel, Yalente, McNally and Eager, JJ.