Opinion
November 9, 1961
Order, entered on July 10, 1961, granting defendant's motion to dismiss the complaint for failure to prosecute unless plaintiff served and filed a note of issue for the September 1961 Term, unanimously modified, on the facts and in the exercise of discretion, so as to dismiss the complaint unconditionally, and, as so modified, affirmed, with $20 costs and disbursements to appellant, and judgment directed to be entered in favor of defendant dismissing the complaint, with costs. Plaintiff did not demonstrate a reasonably substantial excuse for the 20 months' delay in prosecuting the action. Settlement negotiations are in themselves an insufficient excuse. (See Polo v. City of New York, 13 A.D.2d 726; Maizonet v. Lee Props., 11 A.D.2d 667; cf. Fast v. Meenan Oil Co., 1 A.D.2d 889; Trapani v. Samuels, 3 A.D.2d 861.) Moreover, the papers disclose defendant's refusal to settle the case at least eight months before the motion to dismiss was made. Of course, defendant's failure to be examined before trial is completely explained by the fact that plaintiff did not, either by notice or motion, attempt to examine the defendant. Hence, in view of the undue delay and plaintiff's failure to show a satisfactory reason for such delay, the motion to dismiss should have been granted unconditionally.
Concur — Botein, P.J., Valente, Stevens, Eager and Steuer, JJ.