Opinion
September 30, 1965
Order entered on August 2, 1965, denying defendant's motion to dismiss libel action for failure to prosecute unanimously reversed on the law, on the facts, and in the exercise of discretion, with $30 costs and disbursements to defendant-appellant, and the motion is granted, with $10 costs. The motion to dismiss was made on general grounds of delay and not because of the failure to notice the action for trial. Consequently, the 45-day notice provision of CPLR 3216 is not applicable ( Mulinos v. Coliseum Contr. Corp., 22 A.D.2d 163; cf. Brown v. Weissberg, 22 A.D.2d 282). The record of this moribund seven-year-old action otherwise requires that it be dismissed ( Sortino v. Fisher, 20 A.D.2d 25). Fischer v. Pan Amer. World Airways ( 16 N.Y.2d 725) is not in point, because, as made evident by the official headnote, that case involved only the failure to file a timely note of issue for trial, and the court's memorandum decision applied the 1964 amendment to CPLR 3216 (L. 1964, ch. 974) retroactively to motions denied prior to the date the amendment became effective. The decision is not necessarily applicable to motions made on broad grounds of general delay ( Mulinos v. Coliseum Constr. Corp., supra; Brown v. Weissberg, supra).
Concur — Breitel, J.P., Rabin, Valente and Eager JJ.