Levine v. Levy

Appeal held, decision reserved and matter remitted to Onondaga County Special Term (Mead, J.) for further proceedings in accordance with the following Memorandum: It was error to grant the motion to dismiss the action for nonprosecution pursuant to CPLR 3216. The case was stricken from the calendar in November, 1954 and, no application to restore having been made within one year thereafter, it was automatically dismissed by virtue of subdivision 2 of rule 302 of the Rules of Civil Practice (now CPLR 3404). (Wheelock v. Wheelock, 4 N Y 2d 706.) In this circumstance, the motion under CPLR 3216…