Opinion
April 19, 1977
Order, Supreme Court, New York County, entered July 7, 1976, granting the motion and cross motion to dismiss the complaint for lack of prosecution, unanimously affirmed, without costs or disbursements. This action was commenced in April, 1973 relating to an accident which occurred on March 3, 1970. Issue was joined by December, 1973 and then pretrial discovery took place until September, 1974. However, from that time until June, 1975, when the defendants served a 45-day notice pursuant to CPLR 3216, nothing was done to bring the case to trial. In the case at bar, the plaintiff offered no justifiable excuse for the delay in prosecuting this case, nor was there any meritorious cause of action shown against any of the defendants. We further note that the mere appearance by the plaintiff at an examination over two months after the 45-day notice was served did not extinguish the obligation to file a note of issue (CPLR 3216, subd [e]).
Concur — Murphy, P.J., Lupiano, Capozzoli and Lane, JJ.