Opinion
March 5, 1956
In an action to recover damages for injuries to person and property, resulting from a fire, a motion to dismiss for failure to diligently prosecute was made about eighteen months after issue was joined and about ten months after respondents served a bill of particulars. The opposing affidavit by respondents' attorney sought to excuse the delay on the ground that he was hoping for a settlement of the action. The Special Term held the delay "inordinate" and denied the motion. Order reversed, with $10 costs and disbursements, and motion granted. Respondents have failed to sustain the burden of showing that the neglect was not unreasonable (Rules Civ. Prac., rule 156) and have also failed to show that the action has merit. Accordingly, there was no basis for an exercise of discretion in favor of excusing the delay. Nolan, P.J., Wenzel, Murphy, Ughetta and Kleinfeld, JJ., concur.