Edelstein v. Friedlander

167 A.D.2d 500, 562 N.Y.S.2d 945, 1990 N.Y. App. Div. LEXIS 14300

Opinion

In an action to recover damages for libel, the defendants appeal from an order of the Supreme Court, Kings County (Williams, J.), dated December 9, 1988, which denied their motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case the trial court properly exercised its discretion in denying the motion to dismiss the complaint for failure to prosecute. The extent of delay was minimal, there existed a justifiable excuse for the delay, and a sufficient affidavit of merit was provided. Moreover, the defendants have failed to allege prejudice and there is no evidence that the plaintiffs intended to abandon the case (see, Belsky v Lowell, 117 AD2d 575). Thompson, J. P., Brown, Kunzeman and Eiber, JJ., concur.