Belardo v. Thenry Inc.

In an action to recover damages for wrongful death and conscious pain and suffering, the defendants appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County, dated October 18, 1962, as granted conditionally their motions to dismiss the complaint for lack of prosecution; as permitted plaintiffs to file a note of issue for a subsequent term of court; and as denied the motions upon compliance with said condition. Order modified on the facts and in the exercise of discretion by striking out its' two decretal paragraphs, and by substituting therefor a paragraph granting unconditionally defendants’ motions to dismiss the complaint. As so modified, order, insofar as appealed from, affirmed, without costs. In our opinion, under the circumstances here, the conditional granting of the motions constituted an improvident exercise of discretion. The plaintiffs failed to show a reasonable excuse for their delay in prosecuting the action. Plaintiffs also failed to make an adequate showing of merit with respect to the causes of action alleged. Beldock, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.