Opinion
May 28, 1951.
In an action to recover damages for personal injuries, defendant appeals from an order which denied its motion to dismiss the complaint for plaintiff's unreasonable neglect to prosecute the action. Order reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, with $10 costs. Plaintiff failed to explain or excuse the delay of more than four years in bringing the cause on for trial and failed to make any showing of merits. Under such circumstances, it was an improvident exercise of discretion to deny the motion to dismiss ( Fischer v. Tushnett, 256 App. Div. 833; Beer-Meisel Lodge No. 8, Independent Order Brith Abraham v. Herschbein, 270 App. Div. 847; Village of Ardsley v. Aetna Cas. Sur. Co., 274 App. Div. 1075; Maraynes v. Orseck Boys, Inc., 274 App. Div. 1070), even though plaintiff had filed and served a note of issue after the notice of motion to dismiss had been served. ( Fisher Malting Co. v. Brown, 92 App. Div. 251; Sayers v. Leypoldt, 190 App. Div. 949.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.