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PRINCE OF PEACE LUTHERAN CHURCH v. HIBNER

44 A.D.2d 830 (1974)

Prince of Peace Lutheran Church, Appellant, v. Keith I. Hibner, Respondent

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

May 6, 1974

Order reversed insofar as appealed from, without costs, defendant's motion to dismiss the complaint denied and plaintiff's cross motion to dismiss the affirmative defense granted.

It was improper to grant the motion to dismiss the complaint on the ground of general delay in prosecution, in the absence of proof of service of a 45-day notice in conformity with the requirements of CPLR 3216 (subd. [b], par. [3]). (Cohn v. Borchard Affiliations,

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