Williams v. Baker

¶1Judgment and order unanimously reversed, without costs, and defendant’s motion to dismiss complaint for failure to prosecute denied. Memorandum: Were it not for the amendment to CPLR 3216, effective September 1, 1967, we would be constrained to affirm this order made March 3, 1967. Plaintiffs have been guilty of inordinate delay and indifference in the prosecution of their action. The order recites that a note of issue was filed, therefore, defendant should have given the notice provided for in CPLR 3216 (subd. [d]). An appellate tribunal generally applies the law as it exists when it makes its decision in matters of this nature, notwithstanding the fact that a change has been made in the law since the date of the appealed order. “In such situations the applicability and validity of statutes are determined as of the date we make our decision [and cases cited].” (I. L. F. Y. Co. v. Temporary State Mousing Rent Comm., 10 N Y 2d 263, 270; also, see, Strauss v. University of State of N. Y., 2 N Y 2d 464.) The only delay which we can consider is that which has occurred since the date of the filing of the note of issue (Gianeone v. City of N. Y., 29 A D 756). (Appeal from judgment and order of Monroe Special Term dismissing complaint pursuant to CPLR 3216.) Present — Bastow, J. P., Goldman, Marsh and Henry, JJ.