Bogoff v. Mount Sinai Hospital 85 A.D.2d 581

Order, Supreme Court, New York County (Maresca, J.) entered April 21,1981, dismissing the action for failure to prosecute pursuant to CPLR 3216, reversed, on the law and the facts and in the exercise of discretion, with costs, and the motion denied on the condition that the attorneys for the plaintiffs-appellants pay $500 in costs equally to the defendants within 20 days after service of a copy of the order to be entered hereon with notice of entry, failing which the order is affirmed, with costs. The plaintiffs failed to file an affidavit of merit in response to the defendants’ motion to dismiss, and therefore the court at Special Term granted the motion. However, a bill of particulars in the record indicates merit to the claim in a degree sufficient to satisfy CPLR 3216. The plaintiffs have been lax in prosecuting the action, but the defendants have been un-co-operative in disclosure. Under the circumstances, the imposition of costs against counsel for the plaintiffs will suffice, in accordance with the general policy of seeking to dispose of cases on the merits. (See Neyra Y Alba v Pelham Foods, 46 AD2d 760.) Concur — Murphy, P. J., Kupferman, Sandler, Markewich and Lupiano, JJ.