Montgomery Ward & Co. v. Craig

Order, entered May 19, 1964, denying conditionally defendant’s motion to dismiss the complaint for failure to prosecute pursuant to CPLR 3216 unanimously affirmed, without costs or disbursements to either party. In this action for damages allegedly sustained by plaintiff as the result of the receipt of alleged commercial briberies by defendant from suppliers of plaintiff there has been an extraordinary delay in prosecuting the action. The delay, however, is largely explained by the special difficulties faced by plaintiff in obtaining competent evidence to establish its entire claim, although the proof with respect to a part of it appears to be all but conclusive. Under the circumstances plaintiff is entitled to the indulgence allowed to it by Special Term in the exercise of discretion (see Sortino v. Fisher, 20 A D 2d 25, 31, 32). Concur — Breitel, J.- P., Rabin, Valente, Eager and Steuer, JJ.