Opinion
July 30, 1973
In an action for separation, defendant appeals from an order of the Supreme Court, Kings County, dated October 4, 1972, which denied his motion for a protective order vacating plaintiff's notice to examine defendant before trial. Order reversed, with $20 costs and disbursements against respondent, and motion granted. There is no dispute that plaintiff and her attorneys failed to comply with the notice forwarded by the Clerk-in-Charge of the matrimonial part in January, 1970. Thus, pursuant to the notice, the complaint in the action, commenced in 1961, was automatically dismissed for want of prosecution on March 16, 1970 and the Clerk had the duty to make an appropriate entry without further order of the court (CPLR 3404; see Wheelock v. Wheelock, 4 N.Y.2d 706; Levine v. Levy, 29 A.D.2d 827). The case has never been restored. Under such circumstances, there being no pending action, respondent's notice to examine defendant as to his financial condition was without legal cognizance and defendant was entitled to an order of protection. Munder, Acting P.J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.