Opinion
February 13, 1973
Order, Supreme Court, New York County, entered on June 23, 1972, which granted plaintiff's application to serve a supplemental complaint, unanimously affirmed, without costs and without disbursements. Special Term properly afforded plaintiff the opportunity to plead her causes without undue circumscription. Appellant contends that by granting the motion, he has been prejudiced by the resultant delay and further, that the court ineffectually sought to preserve his right to move for dismissal if plaintiff continued to delay. He points to CPLR 3216 (subd. [b]) which provides that a motion to dismiss may not be made for a period of one year and 45 days from the joinder of issue. The order appealed from grants defendant leave to apply for dismissal in the event plaintiff fails to proceed to trial expeditiously. We hold that in so doing the court imposed a valid condition to the service of the supplemental complaint. We reiterate what we said in this case more than one year ago ( 38 A.D.2d 526), that this action should proceed to trial promptly. Plaintiff should proceed expeditiously with the trial of the action or face dismissal.
Concur — McGivern, J.P., Nunez, Murphy, Capozzoli and Macken, JJ.