FOISY v. PENN ALUMINUM INC

Order unanimously reversed and motion denied, without costs. Memorandum: Special Term granted defendant's motion to dismiss plaintiffs' complaint for failure to prosecute, pursuant to CPLR 3216. Respondent admits that a note of issue was filed just prior to or simultaneous with the making of the motion to dismiss. Under these circumstances the only delay which Special Term could consider was that which occurred since the date of the filing of the note of issue ( Giancone v. City of N.Y., 29 A.D.2d 756). As we held in Williams v. Baker ( 29 A.D.2d 915) the facts here presented require a denial of the motion to dismiss.