Opinion
December 4, 1962
Order, entered on May 31, 1962, denying motion to dismiss for lack of prosecution provided plaintiff complies with certain terms, unanimously reversed on the law and on the facts, and as a matter of discretion, with $20 costs and disbursements to the appellant, and the motion granted, with $10 costs. The facts presented in opposition to the application present no reasonable excuse for the failure to proceed in the action for a period in excess of 30 months. Similar excuses have been held invalid ( Goldfarb v. Mallin, 3 A.D.2d 735). Special Term was influenced by the fact that defendant did not move until after the Statute of Limitations had run. This is not a factor to be considered. There is no obligation on a defendant to move to dismiss, and the failure to move before any certain date does not affect the determination of the motion or allow the court to overlook plaintiff's neglect.
Concur — Rabin, J.P., McNally, Stevens, Eager and Steuer, JJ.