Podheiser v. Somerstein Caterers, Inc.

In a negligence action to recover damages for personal injuries, medical expenses and loss of services, defendants appeal from an order of the Supreme Court, Kings County, entered June 9, 1965, which denied their separate motions to dismiss the complaint for lack of prosecution and granted plaintiffs’ cross motion to remove the action to the Civil Court of the City of New York, Kings County. Order reversed, without costs; defendants’ motions granted and complaint dismissed; and plaintiffs’ cross motion denied, without costs. Pursuant to CPLR 3216, a notice was served upon plaintiffs demanding that within 45 days thereafter plaintiffs file a note of issue. Plaintiffs failed to comply with the demand and have not shown a justifiable excuse for the delay (cf. Scalia v. City of New York, 25 A D 2d 452; North Shore Exch. v. Home Ins. Co., 24 A D 2d 1021; Bisnoff v. Bergman, 24 A D 2d 557; Passalacqua v. County Estates, 24 A D 2d 497; Glick v. Flick Realty Corp., 20 A D 2d 876; Smallen v. Sherman Sq. Hotel Corp., 20 A D 2d 527). Beldock, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.