Opinion
October 3, 1963
Order, entered on November 19, 1962, denying motion to dismiss for lack of prosecution, unanimously reversed, on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion to dismiss the complaint granted, with $10 costs. Plaintiff failed, except feebly, to explain or excuse a delay of 73 months between the time of joinder of issue and the serving and filing of a note of issue (see Seymour v. Lake Shore Michigan So. Ry. Co., 12 App. Div. 300). He failed to supply an affidavit of merits (see Gallagher v. Clafington, Inc., 7 A.D.2d 627). A dismissal of the action is therefore required, notwithstanding the fact that plaintiff served and filed a note of issue immediately before the making of the motion to dismiss (e.g., Quick Serv. Novelty Corp. v. Scharf, 3 A.D.2d 989). Moreover, a showing of undue prejudice to defendant is not necessary ( Garcia v. Sentry-Norden Oil Heating Co., 18 A.D.2d 789).
Concur — Botein, P.J., Breitel, Rabin, Eager and Steuer, JJ.