LEVIN v. 40 REALTY

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in granting the motion to dismiss the action unconditionally pursuant to CPLR 3216 (Pennisi v City of New York, 53 N.Y.2d 779).

Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.