Miniotis v. Dugan Bros.

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County, dated June 29, 1972, which denied its motion to dismiss the complaint for lack of prosecution, pursuant to CPLR 3216. Order reversed, without costs, motion granted and complaint dismissed, without costs, all without prejudice to a motion by plaintiff to vacate the dismissal of the complaint on facts not disclosed in this record, as indicated hereinbelow. The proffered explanation by plaintiff’s attorney, that in the course of- moving his office his file of this case was misplaced, is insufficient to excuse the 71-month delay in the prosecution of-the action (Fishbein v. Hertz Corp., 20 A D 2d 708). The inadequacy of this excuse for the delay, combined with the failure to submit an affidavit of merits, entitled defendant to a dismissal of the complaint (Keating v. Smith) 20 A D 2d 141). However, there appear to be facts, not developed in the instant record, which may warrant reconsideration of plaintiff’s situation, when properly presented. Rabin, P. J., Hopkins, Martuscello, Latham and Christ, JJ., concur.