Dorris v. Airway Yellow Cab, Inc. 69 A.D.2d 895

In a negligence action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Westchester County, dated January 10, 1978, as (1) denied their motion to dismiss the action, except to the extent of striking the case from the calendar and (2) granted plaintiff’s cross motion to file a note of issue and statement of readiness nunc pro tunc, each determination conditioned upon the payment by plaintiff to defendants of $50, for a total of $100. Order modified by substituting $125 for $50 as a condition of denying defendants’ motion and as a condition of granting plaintiff’s cross motion, for a total of $250, and by directing that such sums be paid by plaintiff’s attorney. As so modified, order affirmed insofar as appealed from, without costs or disbursements. In the circumstances of this case, it was not an abuse of discretion to deny defendants’ motion to dismiss the complaint for failure to prosecute (see CPLR 3216). However, in view of the plaintiff’s counsel’s dilatory conduct, the sanction has been increased to emphasize that the time limits imposed by statute and by the rules of our court may not be ignored. Lazer, J. P., Rabin, Gulotta and Cohalan, JJ., concur.