Opinion
May 27, 1958
Appeal from the Supreme Court, New York County.
We find no abuse of discretion on the part of the Special Term in refusing to dismiss the complaint unconditionally for lack of prosecution. The order appealed from should, therefore, be affirmed. In so holding we do not overlook our recent determination in Hardware Mut. Cas. Co. v. Rosenberg ( 3 A.D.2d 988) but consider that case clearly distinguishable on the facts. There, the opposing affidavit contained nothing to excuse the delay, beyond the bare statement that there had been a substitution of attorneys and that those attorneys had acted as expeditiously as circumstances permitted. Here, however, the papers submitted in opposition show facts which we consider clearly sufficient to justify a finding by the Special Term that there was a reasonable excuse for the delay. In the circumstances, there is no basis for interference with the discretion exercised.
Moreover, it may be noted that in the present case the motion to dismiss was not made until two days after the plaintiff had served its bill of particulars, whereas in Hardware Mutual the plaintiff was alerted to action only after the motion to dismiss had been made.
The order should be affirmed, with $20 costs and disbursements to the plaintiff-respondent.
Botein, P.J., Rabin, McNally, Stevens and Bergan, JJ., concur.
Order unanimously affirmed, with $20 costs and disbursements to the respondent.