Edgewood Lumber Co. v. Lightman

Motion to dismiss the complaint for lack of diligent prosecution in an action to foreclose a mechanic’s lien for $726.88 granted.

Issue was joined on December 5, 1958. Thereafter, on January 29,1959, defendants served a bill of particulars at plaintiff’s request. Nothing else has been done in this action. The only proof submitted by plaintiff is an affidavit of its attorney which states that the reason no action has taken place is that the file had been misplaced in the closed files of his office. Plaintiff also neglected to submit an affidavit of merits.

To successfully resist a motion of this character a plaintiff must submit papers demonstrating a reasonable excuse for failure to prosecute, supported by an affidavit of merit by the plaintiff. That the file has been ‘ ‘ misplaced ’ ’ does not satisfy the requirements of reasonableness (Moshman v. City of New York, 3 A D 2d 822 [1st Dept.]). Plaintiff, moreover, neglected to submit any facts showing merit in its action. (Moebus v. Paul Tishman Co., 5 A D 2d 786 [2d Dept.]; Birch v. Wolper, 1 A D 2d 1028 [2d Dept.].) Plaintiff’s belated filing of a note of issue when it served its answering affidavit does not excuse its past neglect in prosecution of the action. (Giovannucci v. Brooklyn & Richmond Ferry Co., 278 App. Div. 861 [2d Dept.]; Lange v. Bagish, 285 App. Div. 833 [2d Dept.].)