Order entered April 11, 1968 denying motion to dismiss complaint for failure to prosecute unanimously reversed on the law and the facts and in the exercise of discretion, and complaint dismissed, with $30 costs and disbursements. Issue was joined in this assault action in May, 1966. No steps were thereafter taken. In January, 1967 defendant served the 45-day notice pursuant to CPLR 3216. No note of issue was served within the prescribed period; in fact, it was not until April, 1968, and after this motion was noticed, that a note of issue was served. Plaintiff relies on a flurry of activity after the service of the notice. The greater part of this activity was an effort to obtain some settlement. Special Term concluded that plaintiff did not intend to abandon the action. What appears is that plaintiff hoped to realize something from the action but not by way of trial.
Concur — Steuer, J.P., Tilzer, McGivern and McNally, JJ.