Banik v. Evy Realty Llc

Citation84 A.D.3d 994,2011 N.Y. Slip Op. 04185,925 N.Y.S.2d 333
PartiesAlaka BANIK, et al., plaintiffs-respondents,v.EVY REALTY, LLC, defendant third-party plaintiff-appellant, et al., defendant;United National Specialty Insurance Company, et al., third-party defendants-respondents.
Decision Date17 May 2011
CourtNew York Supreme Court Appellate Division

84 A.D.3d 994
925 N.Y.S.2d 333
2011 N.Y. Slip Op. 04185

Alaka BANIK, et al., plaintiffs-respondents,
v.
EVY REALTY, LLC, defendant third-party plaintiff-appellant, et al., defendant;United National Specialty Insurance Company, et al., third-party defendants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 17, 2011.


Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Norman H. Dachs of counsel), for defendant third-party plaintiff-appellant.Goldstein & Handwerker, LLP, New York, N.Y. (Justin S. Blash of counsel), for plaintiffs-respondents.Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Michael A. Miranda of counsel), for third-party defendants-respondents.

[84 A.D.3d 995] In an action to recover damages for personal injuries, etc., the defendant Evy Realty, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Sherman, J.), dated August 4, 2010, as, upon reargument, granted those branches of the plaintiffs' motion which were, in effect, to vacate the dismissal of the action as against it and to restore the action as against it to active status.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

On September 25, 2009, the Supreme Court, sua sponte, dismissed the action. By notice of motion dated February 3, 2010, the plaintiffs moved, in effect, to vacate the dismissal of the action and to restore the action to active status. The appellant opposed the plaintiffs' motion. In an order dated April 14, 2010, the Supreme Court, inter alia, denied those branches of the plaintiffs' motion which were, in effect, to vacate the dismissal and to restore the action as against the defendant Evy Realty, LLC (hereinafter Evy), to active status. In an order dated August 4, 2010, however, the Supreme Court granted the plaintiffs' motion for leave to reargue and, upon reargument, granted those branches of the plaintiffs' motion which had previously been denied. Evy appeals from the order dated August 4, 2010.

Neither the order dated April 14, 2010, nor the order appealed from contain any explanation for the original denial of those branches of the plaintiffs' motion which were, in effect, to vacate the dismissal and to restore the action as against Evy to active status or the subsequent granting, upon reargument, of those branches of the plaintiffs' motion. In addition, the record is not clear as to why the action was dismissed on...

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12 cases
  • Griffith v. Wray
    • United States
    • New York Supreme Court — Appellate Division
    • 14 Agosto 2013
    ...an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” ( Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333;see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 502–503, 655 N.Y.S.2d 848, 678 N.E.2d 460;Delgado v. New York Cit......
  • Bank of N.Y. v. Harper
    • United States
    • New York Supreme Court — Appellate Division
    • 16 Octubre 2019
    ...court rule authorizing such a dismissal" ( Murray v. Smith Corp., 296 A.D.2d 445, 446, 744 N.Y.S.2d 901 ; see Banik v. Evy Realty, LLC, 84 A.D.3d 994, 995, 925 N.Y.S.2d 333 ). Thus, contrary to the defendant's contention, 22 NYCRR 202.27 could not have provided the basis for the order direc......
  • Tolkoff v. Goldstein
    • United States
    • New York Supreme Court — Appellate Division
    • 29 Julio 2020
    ...preconditions to dismissal are met’ " ( Neary v. Tower Ins., 94 A.D.3d 723, 724, 941 N.Y.S.2d 277, quoting Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333 ). " ‘A 90–day demand to file a note of issue is one of the statutory preconditions’ " ( Atmara, Inc. v. Panoramic Ace Pr......
  • Neary v. Tower Ins.
    • United States
    • New York Supreme Court — Appellate Division
    • 3 Abril 2012
    ...an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” ( Banik v. Evy Realty, LLC, 84 A.D.3d 994, 996, 925 N.Y.S.2d 333, citing Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 502–503, 655 N.Y.S.2d 848, 678 N.E.2d 460; see Murray v. Smit......
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