Rosenberg v. Naishtut , 21 A.D.2d 910 ( 1964 )

In a negligence action, the defendant appeals from so much of an order of the Supreme Court, Kings County, dated December 17, 1963, as granted conditionally her motion to dismiss the complaint for lack of prosecution. Defendant contends that her motion should have been granted unconditionally. Order insofar as appealed from, reversed, without costs; defendant’s motion to dismiss the complaint granted unconditionally; and complaint dismissed, without costs. Plaintiff failed to show either a reasonable excuse or justification for the delay of over four years in the prosecution of the action, or, by an affidavit of one having personal knowledge of the facts, that the action has merit. Under such circumstances, defendant’s motion should have been granted unconditionally. Beldock, P. J., Kleinfeld, Brennan, Hill and Rabin, JJ., concur.