Harrison v. Lagerwall

¶1In a negligence action to recover damages for personal and property injuries, plaintiffs appeal from an order of the Supreme Court, Putnam County, dated March 13, 1970, which granted defendant’s motion to dismiss the complaint, pursuant to CPLR 3216, on the ground that plaintiffs had unreasonably neglected to proceed in the action. Order reversed, without costs, and motion denied. The note of issue was filed before the motion was made. Defendant was in the Armed Services and was not prejudiced by the result. In our opinion, Special Term erred in granting the motion to dismiss the complaint (CPLR 3216; Giancone v. City of New York, 29 A D 2d 756). Martuscello, Latham and Shapiro, JJ., concur; Hopkins, Acting P. J., and Munder, J., dissent and vote to affirm.