Smith v. Feltman

In an action to impress a trust upon a certain bank account, the defendant Columbia Savings & Loan Association appeals from an order of the Supreme Court, Queens County, dated December 26, 1963, which granted conditionally its motion to dismiss the complaint for lack of prosecution (CPLR 3216). Order reversed, with costs; and said defendant’s motion to dismiss the complaint for lack of prosecution granted unconditionally. The record contains no reasonable explanation for the inordinate delay in the prosecution of this action, nor have plaintiffs submitted any affidavit of merits. Under the circumstances, upon the granting of the motion to dismiss, it was an *921improvident exercise of discretion to include a proviso in effect denying the motion if the plaintiffs should file a note of issue and readiness statement “ for the next available term ”. The motion should have been granted unconditionally (Keating v. Smith, 20 A D 2d 141). Beldock, P. J., Ughetta, Kleinfcld, Hill and Rabin, JJ., concur.