Opinion
February 9, 1971
Order of Supreme Court, New York County, entered August 6, 1970, unanimously reversed, on the law and the facts, the motion of defendant-appellant to dismiss the complaint for lack of prosecution granted and the complaint dismissed as to it. Appellant shall recover of respondent $30 costs and disbursements of this appeal. A 45-day notice was served over 28 months after joinder of issue; when this brought forth no response after another six months, this motion to dismiss was made. Neither an affidavit of merit nor an excuse for delay was submitted in opposition, but a note of issue was filed a few weeks thereafter, the result of which was, Special Term held, to have "rendered academic" the motion to dismiss. In the circumstances, the motion to dismiss should have been granted. (See Sortino v. Fisher, 20 A.D.2d 25; Palm v. American Progressive Health Ins. Co., 34 A.D.2d 629; Fischetti v. 242 E. 19th St. Corp., 4 A.D.2d 867; CPLR 3216.)
Concur — Stevens, P.J., Capozzoli, McGivern, Markewich and Tilzer, JJ.