SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
July 16, 1968
JOSEPH MILAZZO, RESPONDENT,
BARNABY CONCRETE CORP. ET AL., APPELLANTS, ET AL., DEFENDANT
Concur -- Stevens, J. P., Steuer, Capozzoli, Tilzer and McGivern, JJ.
The accident upon which this action is premised occurred more than seven years ago. Following upon the commencement of an action almost three years thereafter, the case proceeded in somewhat desultory fashion. There was a lack of compliance with the demand served pursuant to CPLR 3216, which omission continued even up to the return date of the motion to dismiss, which date was almost three months later. No valid excuse or good reason is advanced for the failure to comply with the 45-day notice and demand.
Order entered December 6, 1967, herein appealed from unanimously reversed, on the law, with $30 costs and disbursements, and the motion to dismiss the complaint and sever the action as to appellants is granted.
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