Anna Levy, Respondent, v. Kelly Associates, Inc., Appellant, 20 A.D.2d 772

Order, entered on November 19, 1963, unanimously reversed, on the law and the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and motion to dismiss for lack of prosecution granted, with $10 costs. This action to recover for personal injuries became at issue in May, 1960, but no note of issue was filed until this motion to dismiss was made in October, 1963. The duty of prosecuting this action rested upon the one who brought it, namely, the plaintiff (Sortino v.

Fisher, 20 A D 2d 25, 30); the settlement negotiations and the delay in the completion of pretrial procedures do not, in the posture of this record, constitute a justifiable excuse for the inordinate delay here in placing the case upon the calendar. Furthermore, in view of the provisions of the Statement of Readiness Rule, the case could have been placed on the calendar prior to the completion of the pretrial examinations; in any event, such examinations were completed in January, 1963, and defendant’s deposition signed in March, 1963.

Under the circumstances here, the motion to dismiss should have been granted. (Sortino v. Fisher, supra.) Concur—■ Botein, P. J., Valente, Eager and Steuer, JJ.