Levitt v. Ford Motor Co.

Order of the Supreme Court, Queens County, dated July 25, 1966, reversed insofar as appealed from .by defendants, i.e., as to the second ordering paragraph, which denied their motions to dismiss •the action for failure to prosecute, with $10 costs and disbursements to defendant Ford Motor Co., and said motions granted. Appeal by plaintiffs from so much of said order as denied their cross motion for a change of venue dismissed, as academic. The legislative intent in the 1967 enactment of new CPLR 3216 (L. 1967, ch. 770) motivates application of that enactment to the ease at bar. However, plaintiffs’ failure to file a note of issue or to justify their failure, coupled with the absence of an affidavit as to the merits of their action, *689compels a dismissal of their action for failure to prosecute (CPLR 3216, subd. [e]). Beldock, P. J., Christ, Brennan, Hopkins and Martuscello, JJ., concur.