Opinion
Argued May 25, 1965
Decided July 9, 1965
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HYMAN KORN, J.
Richard Steel and Arnold Krakower for appellants.
Frederic L. Atwood for respondent.
Aaron J. Broder and Herman B. Gerringer for New York State Association of Trial Lawyers, amicus curiae.
Order of Appellate Division reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division. After September 1, 1964, the Appellate Division lacked the power to grant the motion to dismiss for failure to file a note of issue without compliance with CPLR 3216, as amended (L. 1964, ch. 974).
Concur: Chief Judge DESMOND and Judges DYE, FULD, BURKE and SCILEPPI. Judges VAN VOORHIS and BERGAN dissent and vote to affirm.