23 A.D.2d 850 | N.Y. App. Div. | 1965
In a negligence action to recover damages for personal injury, the defendants Farmers Cooperative Marketing Association, Inc., and Leonard C. Woody appeal from an order of the Supreme Court, Suffolk County, entered August 13, 1964, which, pursuant to statute (CPLR 3216) : (1) granted their motion to dismiss the complaint for lack of prosecution — such motion being granted solely as to the defendant Farmers, without prejudice to a motion by plaintiff to vacate the dismissal on sufficient papers; (2) severed the action as to said defendant; and (3) in effect denied the motion as to the defendant Woody. Order affirmed, without costs. As to the defendant Woody, the motion was properly denied in view of the fact that the joint amended notice of motion of said defendant and defendant Farmers was not served until two days after the return date of the original motion by the defendant Farmers alone. As to the defendant Farmers, however, assuming that there was an unreasonable delay by plaintiff in the prosecution of his action, the motion to dismiss should nevertheless have been denied unconditionally. Recognition should be given to the intent of the Legislature as expressed in its amendment of CPLR 3216, effective September 1, 1964, in view of the merit to plaintiff’s cause of action (Schmorak V. Edward F. Hickey, Inc., 21 A D 2d 857; Bailey V. Schaeffner, 21 A D 2d 877). But this court is not presently in a position to give plaintiff any relief since plaintiff has not served or filed a notice of appeal. Plaintiff therefore must now seek relief by a new motion to vacate the dismissal, as permitted by the order. Beldoek, P. J., TJghetta, Christ, Brennan and Hopkins, JJ., concur.
