Opinion
February 29, 1968
Order entered August 3, 1967, granting defendant's motion to dismiss the plaintiffs' cause of action for lack of prosecution, unanimously reversed, on the law, and the facts and in the exercise of discretion, with $30 costs and disbursements to appellants, and motion denied. The situation presented is now within the purview of CPLR 3216, and a note of issue having been filed, the only delay which can be considered is that occurring after such filing. As was currently said by this court, "The instant circumstances, judged in the light of legislative policy since the original enactment of CPLR 3216, do not in our opinion warrant the requested dismissal". ( Mandell v. Continental Ins. Co., 29 A.D.2d 742.)
Concur — Steuer, J.P., Capozzoli, McGivern, McNally and Bastow, JJ.