DI BATTISTA v. PATSALOS


29 A.D.2d 759 (1968)

Renee Di Battista et al., Respondents, v. James Patsalos, Appellant

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

February 5, 1968


Plaintiffs have failed to file a note of issue within 45 days after service upon them of a demand pursuant to CPLR 3216 and have not shown a justifiable excuse for the delay. In our opinion defendant was entitled to an unconditional dismissal of the complaint.

Benjamin, J., dissents and votes to affirm the order, with the following memorandum:

Under the special circumstances of this case, there was sufficient basis to warrant the exercise of discretion...

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