Nolan v. Pavlakis

The misplacing of the file in the office of the plaintiffs’ attorney was an inadequate excuse for the failure to take any steps or to serve a bill of particulars for almost two years after the joinder of issue in an action not begun until more than two years after the occurrence of the accident out of which it arose (Dougherty v. Conti, 4 A D 2d 682; Fischetti v. 242 East 19th St. Corp., 4 A D 2d 867). It was, therefore, an abuse of discretion not to grant unconditionally the motion to dismiss for lack of diligent prosecution (Drabik v. Valle, 8 A D 2d 705).

The order should be modified, with $10 costs and disbursements and motion granted unconditionally.

Concur — Hoestadter, J. P., Gold and Capozzoli, JJ.

Order modified, etc.