De Masi v. Carrozza 38 A.D.2d 586

In an action for work, labor and services, defendants appeal from an order of the Supreme Court, Kings County, dated February 19, 1971, which granted their motion to dismiss the complaint, pursuant to CPLR 3216, for unreasonably neglecting to proceed with the prosecution of the action, but further directed that the complaint was to be dismissed only if plaintiff failed to serve and file a note of issue within a stated time. Order modified, on the law and in the exercise of discretion, by striking therefrom the second decretal paragraph thereof, which provided for the condition to the granting of the motion, and by substituting therefor a provision that the complaint is dismissed. As so modified, order affirmed, with $10 costs and disbursements to appellants. Plaintiff failed to comply with the 45-day rule set forth in CPLR 3216 and did not show a justifiable excuse for his delay in prosecuting the action, which was eommfeneed in 1965. Accordingly, it was an improvident exercise of discretion not to have unconditionally granted the motion to dismiss (cf. Navillus, Inc. v. Guggino, 34 A D 2d 648). Rabin, P. J., Munder, Martuscello, Latham and Shapiro, JJ., concur.