Arvanitakis v. Realty Equities - 1961 Corp.

In a negligence action to recover damages for personal injury, medical expenses and loss of services, defendant appeals from an order of the Supreme Court, Queens County, entered May 23, 1966, which denied its motion to dismiss the complaint for lack of prosecution. Order reversed, without costs, defendant’s motion granted; and complaint dismissed, without costs. Pursuant to CPLR 3216 a notice was served upon plaintiffs demanding that within 45 days thereafter they file a note of issue. Plaintiffs failed to comply with the demand and have not presented a justifiable excuse for the delay (Forte v. Staples Constr. Co., 20 A D 2d 562 ; cf. Green v. Long Is. School of Aeronautics, 12 A D 2d 640 ); nor have they submitted the required affidavit of merits in opposition to the motion (Keating v. Smith, 20 A D 2d 141 ). Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.