Opinion
March 29, 1960
Orders unanimously reversed on the law and in the exercise of discretion, with $20 costs and disbursements on each appeal, and the motions granted, with $10 costs on each motion, but with leave to plaintiff to move to vacate the dismissal upon proper papers including an affidavit of merits by the party plaintiff. The separate appeals of the defendants from the orders of Special Term, which denied defendants' motion to dismiss the complaints for failure to prosecute, are considered together for reasons of convenience. In this action, which charges wrongful inducement to breach an employment contract and wrongful utilization of trade secrets and confidential information obtained from a former employee of the plaintiff, issue was joined in October and November, 1956. Further proceedings were delayed pending the outcome of a prior action brought by the plaintiff against its former employee, which action has now been determined. In light of this record, the nature of the action, and the nature of the Federal action referred to, it may well be that the inaction or delay could be excused. The plaintiff, however, may not be relieved of its responsibility to file the required affidavit of merits. We have repeatedly held that a failure to prosecute requires the dismissal of an action in the absence of a showing of merits ( Barnett Co. v. St. Paul Fire Mar. Ins. Co., 7 A.D.2d 897; Rist v. 234 East 33rd Corp., 4 A.D.2d 867; Hyde Sons v. Roller Derby Skate Co., 1 A.D.2d 942).
Concur — Breitel, J.P., Rabin, M.M. Frank, McNally and Stevens, JJ.