
    Michael Miskiewicz, as Father and Natural Guardian of Robert Miskiewicz, an Infant, et al., Appellants, v Hartley Restaurant Corp. et al., Defendants, and Michael Grammas et al., Respondents.
    Argued February 15, 1983;
    decided February 23, 1983
    
      APPEARANCES OF COUNSEL
    
      Kenneth R. Larywon and Timothy J. McGinn for appellants.
    
      Alvin P. Bluthman and Nathan Cyperstein for Michael Grammas and another, respondents.
    
      Lawrence H. Reid, Jr., for Village of Valley Stream, precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the case remitted to the Appellate Division, Second Department, for further proceedings with respect to the individual respondents, and the order of Supreme Court, Nassau County, insofar as it denied the motions to dismiss the complaint as to respondent Village of Valley Stream reinstated.

Defendants moved pursuant to CPLR 3216 to dismiss the action because of plaintiffs’ failure to file a note of issue. Special Term denied the motion. The Appellate Division, relying on Barasch v Micucci (49 NY2d 594) and noting that the excuse for the delay proffered by plaintiffs’ counsel was law office failure, reversed “on the law”. It erred in doing so and we therefore remit so that it may reconsider the matter and exercise its discretion.

Insofar as the Appellate Division granted the motion of the defendant Village of Valley Stream to dismiss the action, its order is reversed, the order of Special Term reinstated and defendant village’s motion to dismiss denied. It appears from the record before us that defendant village’s notice of appeal to the Appellate Division was not timely and therefore that court was without jurisdiction.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in memorandum.

Order reversed, etc.  