
    Armando E. Teto, Respondent, v. Fleet Chevrolet Corp. et al., Appellants.
   Order, entered on June 18, 1964, unanimously reversed, on the law and the facts and in the exercise of discretion, with $30 costs and disbursements, and motion to dismiss for lack of prosecution granted, with $10 costs. This action to recover damages for false arrest and malicious prosecution was commenced in March, 1961, and issue was joined in May, 1961. An examination before trial scheduled to be held in June, 1961, was adjourned without date. There were no further proceedings in the action until the filing of a note of issue in January, 1964. Special Term, when the motion was first submitted, correctly held that, upon the affidavits and papers before the court, The serving and filing of a note of issue after a period of almost three years, where the plaintiff has done practically nothing to prosecute the action, cannot relieve or excuse his delay in doing so (see Sortino v. Fisher [20 A D 2d 25, 30-31]) * * * the contention of counsel that he has been misled by defendants’ counsel is not sufficient to cause this motion to be denied.” It was an abuse of discretion, however, for Special Term to thereafter allow reargument on the basis of the 1964 amendment to CPLR 3216 (L. 1964, ch. 974) and, on reconsideration, to deny the motion to dismiss. Concur — Breitel, J. P., Valente, Stevens, Eager and Bastow, JJ.  