Wilson v. Boerum Auto Service, Inc. , 24 A.D.2d 1029 ( 1965 )

In an action to recover damages for personal injuries, defendant appeals, by permission of the Appellate Term of the Supreme Court, from an order of said court, entered July 16, 1965, which affirmed an order of the Civil Court of the City of New York, County of Kings, entered February 26, 1965, denying defendant’s motion to dismiss the action for failure to prosecute. Orders of the Appellate Term and of the Civil Court reversed, without costs; motion to dismiss granted and complaint dismissed, without costs. Defendant’s motion was denied because of its failure to show that it had served the 45-day notice required by CPLR 3216. If the motion had been opposed, the denial of the motion would have been proper (Salama v. Cohen, 16 N Y 2d 1058; Tomich v. Cohen, 16 N Y 2d 1058). However, there was no appearance by the plaintiff either at Special Term or in the Appellate Term or in this court. Under such circumstances, we are of the opinion that the complaint should be dismissed. Upon plaintiff’s default, the motion should have been granted as a matter of course (cf. Palmedo v. Walton Reporter Co., 112 Misc. 729, 730, affd. 193 App. Div. 920); and any failure by defendant to comply with the statutory requirements may be considered waived by plaintiff’s nonappearance on the motion. Ughetta, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.