Opinion
June 18, 1963
Order, entered on January 8, 1963, granting defendant's motion to dismiss the complaint for failure to prosecute "unless plaintiff serves and files a note of issue for the March, 1963 term", unanimously modified on the law and on the facts, and in the exercise of discretion, to grant the motion to dismiss the complaint unconditionally, and as so modified affirmed, with $20 costs and disbursements to appellant; and judgment directed to be entered in favor of defendant dismissing the complaint, with costs. Plaintiff did not demonstrate a reasonably substantial excuse for the 32 months of delay in the prosecution of this action. (See Foon v. Blumenthal, 18 A.D.2d 905, 906; Hutnik v. Brodsky, 17 A.D.2d 808; Cassieri v. Houston Motors Auto Leasing, 16 A.D.2d 632; Krell v. Pelham Syndicate, 14 A.D.2d 845. ) Failure of defendant to show that it was prejudiced by the delay is immaterial. (See Garcia v. Sentry-Norden Oil Heating Co., 18 A.D.2d 789.)
Concur — Botein, P.J., McNally, Stevens, Eager and Steuer, JJ.