28 A.D.2d 722 (1967)

Geraldine Kaprow, Appellant, v. Benjamin Jacoby et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 26, 1967

As so modified, order affirmed, with $10 costs and disbursements to appellant.

On this record, we believe it was an improvident exercise of discretion to dismiss the complaint without a previous demand by defendants, pursuant to CPLR 3216, that plaintiff serve and file a note of issue. There is no persuasive showing by defendants that the delay was excessive, that prosecution of the action was abandoned, or that the delay was prejudicial to them. Moreover, the Statute of Limitations has run and dismissal of the action at this time would result in plaintiff's loss of whatever right of action she may have.


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