The instant action arose out of an automobile accident which occurred on January 31, 1973. Issue was joined in 1975. On July 28, 1976 the defendant served a demand on the plaintiff to serve a note of issue within 45 days. On September 17, 1976 the defendant moved to dismiss the complaint for failure to serve the note of issue within the 45 days (CPLR 3216). The order denying said motion is the subject of the present appeal. The order must be reversed and the motion granted...
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