
    (June 17, 1980)
    Constance Marcone et al., Respondents, v City of New York et al., Defendants, and Park River Realty Co., Appellant.
   Order, Supreme Court, Bronx County, entered June 13, 1979, which conditionally granted the city’s motion and Park River’s cross motion under CPLR 3216 and denied plaintiffs’ motion to vacate their default as academic, modified, on the law and the facts, the city’s motion and Park River’s cross motion denied as academic, with the direction that the parties proceed under the first index number (17298/77), and, as modified, affirmed, without costs. Plaintiffs’ attorney did not inform Special Term that, on December 28, 1977, he filed a note of issue and statement of readiness for this proceeding under Index No. 17298/77. Likewise, he did not inform Special Term that, on February 3, 1978, he obtained an order of preference under that first index number. This oversight will be excused because it was attributable to the attorney’s recent illness. To avoid any further confusion, the parties are directed to prosecute this proceeding under that first index number. The city’s motion and Park River’s cross motion under CPLR 3216 are denied as academic since a note of issue has thus been filed by plaintiffs’ attorney. Concur—Murphy, P. J., Fein, Sullivan and Lynch, JJ.  