Opinion
March 30, 1967
Order entered June 22, 1966, granting motion to vacate the preclusion order on condition that a full bill of particulars is served within five days, and further granting motion to dismiss unless plaintiff file a note of issue and statement of readiness within 20 days, unanimously reversed, on the law and the facts, with $30 costs and disbursements to the appellant. The motion to dismiss is granted unconditionally, with $10 costs. Thus the branch of the appeal relating to the preclusion order becomes academic. The delay herein was inordinate and not adequately explained. There was not only a failure to comply with the 45-day demand requirement of CPLR 3216 but also an impermissible general delay in the prosecution of the action. ( Thomas v. Melbert Foods, 19 N.Y.2d 216.) Even if the prior attorney's neglect were excusable (which it is not, Walker v. Ferri, 5 A.D.2d 24) the subsequent conduct of the case by the second attorney was not characterized by expedition.
Concur — Botein, P.J., Stevens, McNally, McGivern and Witmer, JJ.