Ellicott v. Tavern 82 A.D.2d 748

Order, Supreme Court, New York County (Tyler, J.), entered June 30, 1980, denying defendant’s motion to dismiss the complaint for delay in prosecution, unanimously modified, on the facts and in the exercise of discretion, to condition the denial of said motion on the payment, within 20 days of the date of this court’s order, of $250 costs and the costs of this appeal by plaintiff’s attorney; in the event said condition is not complied with, the aforesaid order is reversed, on the law, with costs and disbursements, the motion granted, and the complaint dismissed. It is apparent to us that plaintiff has not abandoned this action which, from the affidavit submitted, appears to have merit. In the circumstances, however, we believe that costs should have been imposed upon plaintiff’s attorney, and we condition the denial of defendant’s motion accordingly. (Neyra Y Alba v Pelham Foods, 46 AD2d 760; Newell v Lane, 45 AD2d 704.) Concur — Sullivan, J. P., Markewich, Bloom and Fein, JJ.