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JEAN A. KULL ET AL. v. CITY NEW YORK (12/09/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 9, 1968

JEAN A. KULL ET AL., APPELLANTS,
v.
CITY OF NEW YORK, RESPONDENT

Appeal from an order of the Supreme Court, Queens County, dated January 2, 1968, which granted defendant's motion to dismiss plaintiffs' complaint on the ground of general delay in prosecution of the action.

Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.

We have held that CPLR 3216, as amended (L. 1967, ch. 770, eff. Sept. 1, 1967), shall be applied to all appeals reaching us after that effective date. Since a note of issue was served and filed prior to the service of the notice of motion, no dismissal could be had under CPLR 3216. Insofar as this holding is inconsistent with Cohn v. Borchard Affiliations (30 A.D.2d 74), we choose not to follow that case. It is our determination that the provisions of CPLR 3216 are constitutional (N. Y. Const., art. VI, ยง 30; Johnson v. Parrow, 56 Misc. 2d 863).

Disposition

Order reversed, on the law, without costs, and motion denied, without costs. The findings of fact below are affirmed.

19681209

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