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PATRICIA ANN HOMES, INC. v. DAMIANI

35 A.D.2d 825 (1970)

Patricia Ann Homes, Inc., Appellant, v. Pat Damiani, Individually and as Business Manager of Local 363 International Brotherhood of Electrical Workers, et al., Respondents

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

November 16, 1970

Order reversed, without costs, and motion denied.

Since defendants did not serve a demand upon plaintiff that he file a note of issue within 45 days and resume prosecution of the action, as is required by CPLR 3216, they were not entitled to an order dismissing the action for failure to prosecute. CPLR 3216 specifically states that no dismissal for failure to prosecute may be had in the absence of the service of such a demand (Cohn v. Borchard Affiliations...

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