Gabrielsen v. Brookhattan Trucking Co.

250 A.D. 861, 294 N.Y.S. 937, 1937 N.Y. App. Div. LEXIS 9449

Opinion

Order denying defendant’s motion to dismiss this personal injury action for failure to prosecute reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. No affidavit of plaintiff was submitted on the motion and the affidavit submitted by his attorney is insufficient to explain or excuse the delay of three and one-half years in noticing the cause for trial. There is no adequate showing of merits, nor does the nature or extent of plaintiff’s injuries appear. In our opinion it was an improper exercise of discretion to deny the motion. Lazansky, P. J., Carswell, Davis, Johnston and Close, JJ., concur.