Opinion
November 16, 1970
Appeal by plaintiff from an order of the Supreme Court, Rockland County, entered March 28, 1969, which granted defendants' motion to dismiss the action for failure to prosecute. Order reversed, without costs, and motion denied. Since defendants did not serve a demand upon plaintiff that he file a note of issue within 45 days and resume prosecution of the action, as is required by CPLR 3216, they were not entitled to an order dismissing the action for failure to prosecute. CPLR 3216 specifically states that no dismissal for failure to prosecute may be had in the absence of the service of such a demand ( Cohn v. Borchard Affiliations, 25 N.Y.2d 237). Munder, Acting P.J., Martuscello, Kleinfeld, Brennan and Benjamin, JJ., concur.