Cleary v. Starkweather

Decision Date27 September 1990
Citation561 N.Y.S.2d 855,165 A.D.2d 967
PartiesDennis 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.
CourtNew 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.

MEMORANDUM DECISION.

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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4 cases
  • Bd. of Managers of the 125 N. 10th Condo. v. 125North10, LLC
    • United States
    • New York Supreme Court
    • January 26, 2016
    ...[2d Dept.1998] ; Muniz v. Church of Our Lady of Mt. Carmel, 238 A.D.2d 101, 655 N.Y.S.2d 38 [1st Dept.1997] ; Cleary v. Starkweather, 165 A.D.2d 967, 561 N.Y.S.2d 855 [3d Dept 1990] ).2 By order dated February 10, 2015, this court dismissed the plaintiff's complaint against Ryder in its ent......
  • Tierney v. OB-GYN Associates of Ithaca
    • United States
    • New York Supreme Court — Appellate Division
    • October 29, 1992
    ...were required to demonstrate both a justifiable excuse for the delay and a meritorious cause of action (see, Cleary v. Starkweather, 165 A.D.2d 967, 561 N.Y.S.2d 855; Juracka v. Ferrara, 137 A.D.2d 921, 922, 524 N.Y.S.2d 885, lv. dismissed, 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 47). W......
  • Jaeger v. Spina
    • United States
    • New York Supreme Court — Appellate Division
    • February 2, 1996
    ...third-party defendant may bring a motion to dismiss plaintiff's complaint for failure to prosecute under CPLR 3216 (Cleary v. Starkweather, 165 A.D.2d 967, 561 N.Y.S.2d 855; Wainwright v. Lively & Co., 99 A.D.2d 490, 491, 470 N.Y.S.2d 433; see, CPLR 1008). Plaintiff, the "party against whom......
  • Hudson v. Albany County Grand Jury
    • United States
    • New York Supreme Court — Appellate Division
    • September 27, 1990

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