Opinion
February 19, 1963
Order, entered on February 20, 1962, dismissing this action for failure to prosecute, unanimously reversed, on the law and on the facts, with $20 costs and disbursements to plaintiff-appellant, and the motion therefor denied with leave to renew. The motion in behalf of defendant Klein purports to be made by attorneys who have not been properly substituted. They have no standing to so move. ( Felt v. Nichols, 21 Misc. 404.) The affidavit in behalf of defendant City of New York, which purports to be but is not a cross motion (see Civ. Prac. Act, § 117), was not properly served on the plaintiff. Further, it would appear that any future application, if made, should contain a sworn statement from Klein's attorney of record regarding the arrangement alleged to have been made with him in respect of pretrial depositions.
Concur — McNally, J.P., Stevens, Eager and Steuer, JJ.