Gallagher v. Clafington, Inc.

Order conditionally granting motion to dismiss action for failure to prosecute modified, on the facts and in the exercise of discretion, to delete the condition and the motion granted, with $10 costs to defendant-appellant, with $20 costs and disbursements of the appeal to the appellant. There has been insufficient excuse presented for the repeated delays in this case, despite prodding by defendant. Moreover, while there is an affidavit by the plaintiff, it is completely devoid of the facts relating to the nature of the accident, the wrong 628 charged to defendant, or other circumstances which would establish merit to the claim. This court has repeatedly expressed its view that a plaintiff on a motion such as this has a substantial burden to excuse or justify delay and to establish by evidentiary facts the merits of the cause of action. (See Rist v. 234 East 33rd Corp., 4 A D 2d 867; Fischetti v. 242 East 19th St. Corp., 4 A D 2d 867; Hyde & Sons v. Roller Derby Skate Co., 1 A D 2d 942; Friedlander v. Roxy Theatre, 204 Misc. 740, affd. 283 App. Div. 860.) Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and Bastow, JJ.