42 A.D.2d 564 | N.Y. App. Div. | 1973
In an action inter alla, for negligence to recover damages for personal injuries sustained by plaintiff James P. Cahill and for his wife’s loss of services, defendants appeal from an order of the Supreme Court, Queens County, dated July 6, 1972, which denied their separate motions to dismiss the action for want of prosecution (CPLR 3216). Order affirmed, without costs. Plaintiff James P. Cahill is in the military service. If this action were dismissed for want of prosecution, a second action by him would not be time-barred by the applicable Statutes of Limitation, by virtue of the tolling provisions contained in section 308 of the Military Law and section 205 of the Federal Soldiers’ and Sailors’ Civil Relief Act of 1940 (U. S. Code, tit. 50, App., § 525). Under such circumstances and in view of the opposition to dismissal at Special Term and on this appeal, it would be an idle gesture to dismiss this otherwise dismissable action. Hopkins, Acting P. J., Latham, Shapiro, Christ and Benjamin, JJ., concur.