Stein v. West Sayville Pharmacy, Inc.

In a negligence action to recover damages for personal injury, loss of services and medical expenses, defendant appeals from an order of the Supreme Court, Suffolk County, dated May 2, 1962, which granted defendant’s motion to dismiss the complaint for lack of prosecution, on condition that plaintiffs serve and file a note of issue for a subsequent term of the court (Civ. Prac. Act, § 181; Rules Civ. Prae., rule 156). Order modified in the exercise of discretion by striking out its decretal paragraph, and by substituting therefor a paragraph granting unconditionally defendant’s said motion. As so modified, order affirmed, without costs. Plaintiffs failed to submit any papers explaining their failure, for a period of 34 months after joinder of issue, to notice the case for trial. Nor did plaintiff file an affidavit of merits. Under the circumstances, there was no basis for the exercise of discretion in plaintiffs’ favor (Fiorello v. Towers Management Corp., 6 A D 2d 677; Topp v. Casco Prods. Corp., 8 A D 2d 727; Costanzo v. Schwedler, 14 A D 2d 814; Siegel v. City of New York, 16 A D 2d 679). Beldock, P. J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.