Opinion
January 19, 1976
In a negligence action to recover damages for personal injuries, etc., defendant Louis Waldman, Jr., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County, dated March 4, 1975, as, upon granting its motion to dismiss the complaint for want of prosecution, did so conditionally. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion granted unconditionally. The motion to dismiss the complaint pursuant to CPLR 3216 should have been granted unconditionally (McKay v Smithtown Gen. Hosp., 42 A.D.2d 594; Chodikoff v Troy Estates, 37 A.D.2d 670). Gulotta, P.J., Rabin, Hopkins, Latham and Margett, JJ., concur.