Opinion
May 29, 1961
Order entered on November 2, 1960, denying plaintiff's motion to vacate order dismissing the complaint for failure to prosecute, unanimously modified, on the law, on the facts, and in the exercise of discretion, and motion granted, with $10 costs as to the cause of action against defendant Rosenblatt; and in other respects affirmed, with $20 costs and disbursements to each prevailing party. Although plaintiff shows that the delay in the prosecution of the action is attributable to his former attorney and sufficiently shows a cause of action for assault against defendant Rosenblatt, he does not show any factual basis for the cause of action against the corporate defendant. The defendants' motion to dismiss for lack of prosecution followed plaintiff's notice for the examination of defendants before trial, which was adjourned at defendants' request. This was not factually denied in the answering papers of the defendants on the motion to vacate the order of dismissal, and we do not regard the statement in the answering affidavit of the attorney for one of the defendants that "There is no merit to the proposition * * * that the case was not placed upon the Calendar at the request of the defendants" as a denial of the time sequence in which the motion to dismiss followed the notice for examination.
Concur — Botein, P.J., Breitel, Stevens, Eager and Bergan, JJ.