Harman v. Grabowetsky

Orders, entered May 20, 1964, denying the motions of defendants-appellants to dismiss the complaint for failure to prosecute pursuant to CPLR 3216, unanimously reversed, on the law, the facts, and in the exercise of discretion, with $20 costs and disbursements to appellants, and the motions to dismiss the complaint granted, with $10 costs. In this January, 1961 director’s derivative action seeking recovery for the nominal corporate defendant, a printing company, of alleged excessive payments for bindery services from 1954 through 1960, plaintiff submits a eonclusory affidavit of merits containing little evidentiary matter. No significant evidence of excessive payments or reduced profits is shown even though plaintiff has the co-operation of the nominal defendant printing company and an expert in binding charges. Moreover, plaintiff’s excuse that pretrial proceedings are pending is insufficient. He has had the co-operation of the printing company since September, 1962, and the importance of additional discovery proceedings is not shown. It is significant that plaintiff neglected *863for 21 months to perfect his appeal from an order denying examination before trial of the individual defendants, and then he did so only after noticing of these motions for failure to prosecute. (See Sortino v. Fisher, 20 A D 2d 25.) Concur — Breitel, J. P., Rabin, Yalente, Stevens and Staley, JJ.