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LEO LEICHTER v. FRANCIS J. MURPHY (06/16/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 16, 1969

LEO LEICHTER, APPELLANT,
v.
FRANCIS J. MURPHY, RESPONDENT, ET AL., DEFENDANTS

Appeals by plaintiff (1) from an order of the Supreme Court, Kings County, dated January 9, 1968, which (a) granted defendant Murphy's motion to dismiss the complaint as to him for want of prosecution and (b) severed the action as to him and, (2) as limited by his brief, from so much of an order of the same court, dated March 25, 1968, as, on reargument, adhered to the original determination.

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

Plaintiff's failure to file and serve a note of issue after a demand and his failure to offer an excuse in affidavits in opposition to the motion to dismiss for failure to prosecute require an affirmance of the dismissal of the complaint. While we have stated that we will apply CPLR 3216 (as amd. by L. 1967, ch. 770, eff. Sept. 1, 1967) to cases appealed to this court after that date, we do not believe that the service requirements of 3216 as amended (certified or registered mail) should be applied where the demand was served prior to the effective date of the amendment.

Disposition

Appeal from order dated January 9, 1968 dismissed as academic. That order was superseded by the order made on reargument. Order dated March 25, 1968 affirmed insofar as appealed from. Respondent is allowed one bill of $10 costs and disbursements to cover both appeals.

19690616

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