Brignati v. Bailey

¶1Order of the Supreme Court, Queens County, dated August 25, 1966, reversed, without costs; defendants’ motion granted; plaintiff’s cause of action for personal injuries dismissed; and his cause of action for property damage severed and remitted to the Civil Court of the City of New York, Queens County, to be restored to its former position on the calendar for trial. Pursuant to CPLR 3216, as amended, defendants duly served upon plaintiff’s attorneys a notice demanding that within 45 days plaintiff serve and file a note of issue. Plaintiff failed to comply with the demand. Defendants thereupon made the motion under review, to dismiss the personal injury cause for lack of prosecution and to sever the cause of action for property damage. Plaintiff failed, in opposition thereto, to offer a satisfactory excuse for Ms long delay in prosecuting the action and to submit an affidavit showing that he has a good and meritorious cause of action for personal injuries. In the circumstances, defendants are entitled to an unconditional dismissal thereof (Pernise v. Di Giacomo, 25 A D 2d 447; Passalacqua v. County Estates, 24 A D 2d 497). Beldock, P. J., Ughetta, Christ, Hill and Benjamin, JJ., concur.