Webb v. Zogaria

—Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered December 31, 2001, which, inter alia, denied defendants’ motion to dismiss the complaint for failure to serve and file a note of issue.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed in the exercise of discretion without costs, the motion is granted, the complaint is dismissed and the cross motion is denied.

Memorandum: Supreme Court improvidently exercised its discretion in denying defendants’ motion to dismiss the complaint pursuant to CPLR 3216. “Although a court…