Edmund Salama, Respondent, v. Victor Cohen, Appellant

Edmund Salama, Respondent, v. Victor Cohen, Appellant. [MAJORITY] Order, entered on or about September 4, 1964, denying defendant’s motion to dismiss for lack of prosecution, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to defendant-appellant, and the motion granted, with $10 costs. The motion to dismiss was made on the ground of general delay and was not based on plaintiff’s failure to serve and file a note of issue. Consequently, CPLR 3216 does not apply. (Mulinos v. Coliseum Constr. Gorp., 22 A D 2d 163; Brown v. Weissberg, 22 A D 2d 282.) The ground advanced for the delay has not been sustained; moreover, it does not justify the delay in prosecution of this action. Plaintiff’s alleged desire to settle the ease to avoid offending the defendant doctor, who was his friend and from whom he had been receiving psychiatric help, is not a legal justification for the delay. “ That settlement negotiations have occurred between representatives for defendant and plaintiff is sometimes a reasonable excuse for not taking any particular action while the negotiations are pending. The excuse, however, ceases to have effect within a brief interval after the last communication.” (Sortino v. Fisher, 20 A D 2d 25, 29.) There is no showing of any settlement negotiations prior to the instant motion. Concur — Botein, P. J., Valente, McNally, Eager and Staley, JJ.