Birch v. Wolper , 1 A.D.2d 1028 ( 1956 )

In an action to recover an alleged balance due for work performed and materials furnished, the appeal is from an order denying a motion to dismiss the complaint for lack of prosecution. Order reversed, with. $10 costs and disbursements, and motion granted, with $10 costs. Respondents did not serve and file a note of issue until about six and a half years after the joinder of issue. The proffered excuse that there were negotiations for settlement is insufficient, particularly since the last communication with respect to the possibility of settlement took place about six years before the service of the note of issue. Further, they failed to make any showing of merits. The only affidavits submitted on their behalf were made by their attorney. The references in his affidavits to the procedural steps which were taken in the action and to an offer of compromise which was made on appellant’s behalf do not constitute a showing of merit. Under the circumstances it was an improvident exercise of discretion to deny the motion to dismiss (cf. Giovannucci v. Brooklyn & Richmond Ferry Co., 278 App. Div. 861, and eases there cited). Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.