In an action to recover damages for personal injury, the defendant Mandelson appeals from an order of the Supreme Court, Westchester County, dated October 17, 1963, which denied his motion to dismiss the complaint for lack of prosecution (CPLR 3216). Order reversed, without costs; motion granted and complaint dismissed, without costs as against the moving defendant Mandelson; and action severed as to the defendant Motley. The motion was properly before Special Term as an application pursuant to statute (¡CPLR 3216) and was not governed by this Department’s rules concerning motions to strike actions from the calendar (Rules, App. Div. 2d Dept.,
part 7, rule V). The inadvertence of counsel which was urged by plaintiffs as their excuse for the unreasonable neglect of over three years after joinder of issue in placing the action on the calendar for trial, is insufficient (Gold v. Bluvshtein, 18 A D 2d 671; Burke v. City of New York, 18 A D 2d 898). The filing of a note of issue on the eve of a motion to dismiss for lack of prosecution is not, by itself, an excuse for the delay charged (Sortino v. Fisher, 20 A D 2d 25 and cases there cited). Plaintiffs also failed to submit an affidavit of merits.
An affidavit by an attorney, who is without personal knowledge of the facts, is insufficient (Keating v. Smith, 20 A D 2d 141). Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.