Summary
concluding "inferentially" from the record before it that the "dismissal of the original, timely action was . . . for `neglect to prosecute'"
Summary of this case from Doyle v. Am. Home Prods. Corp.Opinion
Argued January 12, 1978
Decided February 9, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, W. VINCENT GRADY, J.
Seale W. Tuttle for appellant.
Roy L. Featherstone for respondents.
MEMORANDUM.
Order reversed, without costs, and motion to dismiss the complaint granted. Plaintiffs, having moved to Israel, failed to appear for an examination before trial and on the date set for trial. Under those circumstances, coupled with the protracted and repeated delays by plaintiffs, dismissal of the original, timely action was inferentially for "neglect to prosecute" within the meaning of CPLR 205 (subd [a]) (see Wright v Defelice Son, 22 A.D.2d 962, affd 17 N.Y.2d 586; Jelinek v City of New York, 25 A.D.2d 425; McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C205:5, p 197). The statutory six-month extension not being available, the instant action, brought more than three and a half years after the accident, is barred under the insurance policy's one-year time limitation.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, without costs, and motion to dismiss the complaint granted in a memorandum. Question certified answered in the negative.