Pernise v. Di Giacomo

In a negligence action to recover damages for personal injury, the defendant appeals from an order of the Supreme Court, Kings County, entered July 15, 1965, which denied his motion to dismiss the complaint for lack of prosecution on condition that the action be placed on the calendar within a specified time. Order reversed, without costs; motion granted unconditionally and complaint dismissed, without costs. Pursuant to CPLR 3216 as amended, defendant duly served upon plaintiff’s attorney a written demand that within 45 days plaintiff serve and file a note of issue. Plaintiff failed to comply with such demand. In our opinion, the inadequacy of the excuses offered for the delay, combined with the failure to submit an affidavit of merits, entitled the defendant to an unconditional dismissal of the complaint (Passalacqua v. County Estates, 24 A D 2d 497; Bisnoff v. Bergman, 24 A D 2d 557).