Opinion
June 21, 1960
Order, denying motion to dismiss complaint for failure to prosecute, dated February 10, 1960, unanimously reversed, on the law and on the facts, and in the exercise of discretion, with $20 costs and disbursements to defendants-appellants, and the motion granted, with $10 costs. Neither the belated filing of the note of issue nor the vague allegations regarding settlement discussions excuses the 28-month delay ( Nigro v. City of New York, 3 A.D.2d 987; cf. Trapani v. Samuels, 3 A.D.2d 861). Moreover, no affidavit of merit was submitted in opposition to the motion ( Gallagher v. Clafington, Inc., 7 A.D.2d 627).
Concur — Breitel, J.P., Rabin, Valente and Bergan, JJ.