Opinion
April 22, 1965
Order, entered on or about May 12, 1964, unanimously reversed, on the law, the facts, and in the exercise of discretion, with $30 costs and disbursements to appellant, and motion to dismiss for lack of prosecution granted, with $10 costs. This action to recover for personal injuries was commenced in April, 1961, and issue was joined in October, 1961. There were no proceedings thereafter looking toward the trial of the action and, in November, 1963, following the dismissal of the action as against a codefendant for lack of prosecution, this motion to dismiss was made by the defendant City of New York. No satisfactory excuse has been presented for plaintiff's inordinate delay of upwards of two years in filing a note of issue. Plaintiff's alleged lack of funds to defray the expenses of the prosecution of the action does not constitute an adequate explanation for the delay. (See Granich v. Stolovitz, 270 App. Div. 899; Benjamin v. Chock Full of Nuts, 18 A.D.2d 906.) The motion was submitted and decided at Special Term prior to the 1964 amendment to CPLR 3216 (L. 1964, ch. 974, eff. Sept. 1, 1964) and said amendment constituted no constraint upon the court in the exercise of its discretion in the premises. (See Teto v. Fleet Chevrolet Corp., 22 A.D.2d 672.) It was an abuse of discretion for Special Term to deny the motion to dismiss. (See, further, Sortino v. Fisher, 20 A.D.2d 25; Brown v. Weissberg, 22 A.D.2d 282.)
Concur — Botein, P.J., Breitel, McNally, Stevens and Eager, JJ.