Opinion
October 30, 1961
In an action to recover damages for injuries to personal property, defendant appeals from an order of the County Court, Suffolk County, dated June 8, 1961, granting her motion to dismiss the complaint for lack of prosecution "unless plaintiff serves and files a note of issue within ten days after service upon plaintiff's attorney of a copy of this order." Order modified by striking out the provision quoted and by granting the motion unconditionally. As so modified, order affirmed, with $10 costs and disbursements to defendant. In view of the plaintiff's failure to set forth any facts showing merit in her action or excusing her delay in the prosecution thereof, it was an improvident exercise of discretion not to grant the motion unconditionally (cf. Moebus v. Tishman Co., 5 A.D.2d 786; Topp v. Casco Prods. Corp., 8 A.D.2d 727). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.