SALAMA v. COHEN

In each of the above-entitled actions: Order of Appellate Division reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division. A motion to dismiss under CPLR 3216 cannot be granted prior to the filing of a note of issue unless defendant has first served a written demand on the plaintiff to serve and file the note of issue within 45 days in accordance with the terms of the statute. (Cf. Fischer v. Pan Amer. World Airways, 16 N.Y.2d 725.)

Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN.