72 A.D.2d 546 | N.Y. App. Div. | 1979
In a products liability action, defendant appeals from an order of the Supreme Court, Nassau County, dated May 11, 1978, which denied its motion to dismiss the plaintiff’s complaint as time barred. Order reversed, on the law, with $50 costs and disbursements, motion granted and the complaint is dismissed. In 1971 plaintiff commenced a products liability action against the defendant claiming that she contracted poliomyelitis in 1955 as a result of being injected with defendant’s vaccine. After numerous delays and adjournments, the action was ultimately dismissed in 1977 after the plaintiff had refused to begin selection of a jury because she was still in search of a particular witness who had written a newspaper story on the inoculations at the time she had been injected with the vaccine. The Trial Judge did not expressly state whether the dismissal was for "neglect to prosecute” so as to exclude it from the provisions of CPLR 205 (subd [a]), but he did state for the record: "Issue was