Jones v. Oglesby

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated March 13, 1998, which denied their motion to dismiss the complaint pursuant to CPLR 3216 for lack of prosecution. Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is granted, and the complaint is dismissed. The Supreme Court improvidently exercised its discretion in denying the defendants’ motion to dismiss the complaint pursuant to CPLR 3216 (see, Baczkowski v Collins Constr. Co., 89 NY2d 499). The explanation of the plaintiffs’ counsel that the delay in prosecuting the action was due to the transfer of the case file from trial counsel to his office, without further explanation, was unacceptable (see, Robinson v New York City Tr. Auth., 203 AD2d 351; Swedish v Bourie, 233 AD2d 495, 496; Van Kleeck v Horton Mem. Hosp., 251 AD2d 494; Sarles v Vil 394 lage of Tarrytown, 245 AD2d 440). Also, the plaintiffs failed to demonstrate a meritorious cause of action, as the police accident report submitted in opposition to the motion was not in admissible form (see, DeLisa v Pettinato, 189 AD2d 988). Bracken, J. P., Copertino, Santucci and Altman, JJ., concur.