Mayo v. New Sands Operating Corp.

Order, entered September 28, 1967, granting reargument and upon reargument adhering to original decision granting defendant-respondent’s motion to dismiss the complaint for lack of prosecution and denying plaintiff-appellant’s cross motion to transfer the action to the Civil Court, reversed, on the law, the facts and in the exercise of discretion, and the motion to dismiss is denied, without costs or disbursements. Plaintiff-appellant’s cross motion to transfer the cause to the Civil Court is granted, conditioned on the payment of a full bill of costs to defendant-respondent. Since the order was dated September 28, 1967, subsequent to the effective date of CPLR 3216, the legislative policy therein expressed, in our opinion, does not warrant dismissal. Concur — Tilzer, MeGivern and McNally, JJ.; Eager, J. P., and Steuer, J., dissent in the following memorandum: We dissent. Under the circumstances here, we do not agree that this court should be moved on “ the facts and in the exercise of discretion ” to reverse the order of Special Term. We would affirm as a matter of law. (See Guhl v. Martin 29 A D 2d 858.)