In re the Arbitration between Empresa Industrial, Ltda. & Continental Nut Co.

dissents in the following memorandum: Inasmuch as only some 60 days have passed since the notice of appeal was filed, which is well within the nine months’ rule (Rules of App Div, 1st Dept, § 600.11 [a] [3], 22 NYCRR), and the appellant requests leave to withdraw the appeal, such leave should be granted. Therefore, the motion by the petitioner-respondent to dismiss the appeal for failure to prosecute should be denied as moot.

— Motion to dismiss appeal for failure to prosecute within 30 days and because the appeal is without merit granted, with $20 costs. Concur — Carro, Silverman, Fein and Kassal, JJ.