Flans v. Federal Insurance

OPINION OF THE COURT Memorandum. Order reversed, without costs, and motion to dismiss the complaint granted. Plaintiffs, having moved to Israel, failed to appear for an examination before trial and on the date set for trial. Under those circumstances, coupled with the protracted and repeated delays by plaintiffs, dismissal of the original, timely action was inferentially for "neglect to prosecute” within the meaning of CPLR 205 (subd [a]) (see Wright v Defelice & Son, 22 AD2d 962, affd 17 NY2d 586; Jelinek v City of New York, 25 AD2d 425; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C205:5, p 197). The statutory six-month extension not being available, the instant action, brought more than three and a half years after the accident, is barred under the insurance policy’s one-year time limitation. Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum. Order reversed, without costs, and motion to dismiss the [883] complaint granted in a memorandum. Question certified answered in the negative.