Cleary v. Starkweather
Decision Date | 27 September 1990 |
Citation | 561 N.Y.S.2d 855,165 A.D.2d 967 |
Parties | Dennis H. CLEARY, et al., Appellants, v. Karl A. STARKWEATHER, et al., Doing Business as Starkweather Construction Company, et al., Defendants and Third-Party Plaintiffs-Respondents; Minfelt Wholesale Company, Inc., Third-Party Defendant-Respondent. |
Court | New York Supreme Court — Appellate Division |
Block & Colucci, P.C. (Dennis H. Cleary, of counsel), De Witt, for appellants.
Carmen Grasso, Syracuse, for defendants and third-party plaintiffs-respondents.
Greene, Hershdorfer & Sharpe (Lorraine M. Rann, of counsel), Syracuse, for third-party defendant-respondent.
Before MAHONEY, P.J., and KANE, CASEY, LEVINE and HARVEY, JJ.
Appeals (1) from an order of the Supreme Court (Tait, Jr., J.), entered June 26, 1989 in Madison County, which, inter alia, granted third-party defendant's motion to dismiss the complaint for failure to prosecute, and (2) from the judgment entered thereon.
Initially, we find no merit to plaintiffs' contention that third-party defendant had no standing to bring a motion to dismiss plaintiffs' complaint for failure to prosecute pursuant to CPLR 3216. CPLR 3216(a) is not restrictive and, therefore, entitles any party interested in moving an action forward to make such a motion, including a third-party defendant (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y. Book 7B, CPLR C3216:9, at 920). Turning to the merits of the motion, plaintiffs have failed to meet their burden of demonstrating a meritorious cause of action (see, Alise v. Colapietro, 119 A.D.2d 921, 922, 500 N.Y.S.2d 868), and a justifiable excuse for their default, both of which are required by CPLR 3216(e) (see, Billings v. Berkshire Mut. Ins. Co., 149 A.D.2d 895, 896, 540 N.Y.S.2d 577). As such, dismissal of plaintiffs' complaint was properly made (see, Riley v. Makowski, 92 A.D.2d 664, 460 N.Y.S.2d 158).
Order and judgment affirmed, with one bill of costs.
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