Fagin v. Grossinger S & H Inc.

Order unanimously reversed, without costs of this appeal to either party, and motion granted, without costs. Memorandum: The affidavit of the plaintiff-respondent failed to set forth facts demonstrating that there was a meritorious cause of action. In this respect it was deficient. Furthermore, there was ño sufficient explanation in any of respondents’ papers of the untimely delay in moving and prosecuting the case. (Gallagher v. Glafington, Inc., 7 AD 2d 627; Mondo V. New Amsterdam Cas. Co., 3 A D 2d 640.) Therefore, in the exercise of a provident discretion, the motion should be granted. (Appeal from an order of Brie Special Term denying defendants’ motion to dismiss complaint for failure of prosecution.) Present — Williams, P. J., Bastow, McClusky, Henry and Noonan, JJ.