Alan Romeo et al., Respondents, v. City of New York, Defendant, and John Bates, Appellant

Alan Romeo et al., Respondents, v City of New York, Defendant, and John Bates, Appellant. [MAJORITY] Order of the Supreme Court, New York County (I. Kirschenbaum, J.), entered on December 22, 1982, which, inter alia, denied defendant’s motion to dismiss the action for failure to prosecute, is unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of imposing the condition that counsel for plaintiff pay $750 in motion costs, and otherwise affirmed, without costs. In the event that counsel for plaintiff fails to pay the $750 in motion costs within 30 days of the release hereof, then the order is reversed, on the law and the facts and in the exercise of discretion, and the motion to dismiss is granted, without costs. This personal injury action arises from an accident that occurred in 1977 when plaintiff’s car struck a car that was owned by defendant Bates. Defendant’s car was stalled in an ice-covered intersection. The City of New York, which is not a party to this appeal, is a defendant because the ice allegedly resulted from a water main break. At issue on this appeal is whether Special Term abused its discretion by not dismissing the action on the ground that counsel for plaintiff inexcusably delayed the prosecution of the action after defendant had twice served a demand that plaintiff file a note of issue and statement of readiness. We hold that Special Term, after considering both the excuse for the delay and the merits of the action, on balance, properly exercised its discretion in denying the motion to dismiss. Nonetheless, in view of the delay and the burden upon counsel for defendant, imposition of motion costs is in order. Concur — Murphy, P. J., Kupferman, Sullivan, Ross and Kassal, JJ.