Briskin v. Hertz Corp.

In an action to recover damages for personal injury, defendant appeals from an order of the Supreme Court, Queens County, dated May 27, 1963, conditionally denying its motion to dismiss the complaint for lack of prosecution, pursuant to section 181 of the former Civil Practice Act. Order reversed, without cost; motion granted and complaint dismissed, without costs. In our opinion, defendant’s right to dismissal was not waived by proceeding with the examinations before trial at a time when a decision on its motion to dismiss was pending. In view of the history of this action, plaintiff has failed to make the required showing of a reasonable excuse or justification for the delay in its prosecution (Keating v. Smith, 20 A D 2d 141). Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.