Opinion
November 2, 1964
In a libel action, the plaintiff appeals from an order of the Supreme Court, Westchester County, dated March 26, 1964, which granted the defendants' motion to dismiss the complaint for lack of prosecution. Order reversed, with $10 costs and disbursements to plaintiff, and motion to dismiss the complaint denied. Such denial, however, is with leave to renew the motion in the event that, within 90 days after entry of the order hereon, there has been a failure: (a) to effect a substitution of parties in place of the deceased individual defendant; (b) to complete all preliminary proceedings; and (c) to place the action on the calendar (see CPLR 1021). The pretrial examination of the defendant corporation, pursuant to the notice heretofore served by the plaintiff, shall proceed on 10 days' written notice or at such time and place as the parties may mutually agree by written stipulation. In the light of the legislative intent inherent in the recent amendment to the statute (CPLR 3216; L. 1964, ch. 974), the action should not be dismissed. In any event, by reason of the individual defendant's death, the court was not authorized to decide the motion until his executor or administrator had been substituted ( Ruderman v. Feffer, 10 A.D.2d 704; Wilson v. Harter, 57 App. Div. 484). Ughetta, Acting P.J., Christ, Brennan, Hill and Hopkins, JJ., concur.