
    Louis L. Rosenberg, Appellant, v. Joseph Rae, Respondent and Third-Party Plaintiff-Respondent, et al., Defendants. Theodore Blatt, Third-Party Defendant.
    Argued January 11, 1971;
    decided February 18, 1971.
    
      
      John F. Anderson for appellant.
    
      Noel W. Mauser for respondent.
   Memorandum. We are in accord with the conclusions expressed in the dissenting opinion at the Appellate Division. Although the order of that court stated that the reversal was on the law and the facts, the explicit basis therefor was plaintiff’s failure to serve the notice provided by CPLR 3216. Consequently,' the Appellate Division did not pass upon the Special Term’s exercise of discretion in denying defendant’s motion to restore the ease to the calendar and remittal must be directed for that purpose (CPLR 5613).

The order appealed from should be reversed, without costs, and the case remitted to the Appellate Division for determination of the questions of fact raised in that court (CPLR 5613).. The question certified should be answered in the negative.

Chief Judge Fuld and Judges 'Scileppi, Bbrgan, Breitel, Jasen and Gibson concur; Judge Burke taking no part.

Order reversed, without costs, and case remitted to the Appellate Division for further proceedings in accordance with the memorandum herein. Question certified answered in the negative.  