Donnell v. Madison Avenue-53rd Street Corp.

• Decision Date: 04 April 1995
• Parties: Catherine DONNELL, Plaintiff-Appellant, v. MADISON AVE.-53rd STREET CORPORATION, et al., Defendants-Respondents, and The City of New York, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 427

624 N.Y.S.2d 427

214 A.D.2d 307

Catherine DONNELL, Plaintiff-Appellant, v. MADISON AVE.-53rd STREET CORPORATION, et al., Defendants-Respondents, and The City of New York, Defendant.

Supreme Court, Appellate Division,

First Department.

April 4, 1995.

E.P. Dunphy, for plaintiff-appellant.

J.C. Young, M.D. Sweetbaum, for defendants-respondents.

Before WALLACH, J.P., and RUBIN, ASCH, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Jane Solomon, J.), entered on or about November 24, 1993, which granted defendants-respondents' motions to dismiss the complaint for want of prosecution, unanimously reversed, on the law, and the motions denied, without costs.

Defendant 510 Madison Avenue Camera & Electronics Corp. did not serve plaintiff with a 90-day notice and, thus, is not entitled to dismissal of the complaint (CPLR 3216[b][3]; Juracka v. Ferrara, 137 A.D.2d 921, 923, 524 N.Y.S.2d 885, appeal dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 47, mot. to renew mot. for lv. to appeal denied 74 N.Y.2d 642, 541 N.Y.S.2d 982, 539 N.E.2d 1110; Seidman v. Shames, 130 A.D.2d 568, 569, 515 N.Y.S.2d 509). Service of the notice by the moving party is a condition precedent to dismissal for general delay in prosecution (CPLR 3216[b]; Hatzlachh Supply Co. v. Bank of Am., 188 A.D.2d 298, 590 N.Y.S.2d 488, affd 81 N.Y.2d 1031, 600 N.Y.S.2d 190, 616 N.E.2d 847).

At issue on this appeal is whether defendant Madison Avenue-53rd Street Corporation ("53rd Street") has demonstrated compliance with CPLR 3216(b) so as to be entitled to dismissal of the action against it. The question is complicated by inconsistent orders that set varying dates for completion of discovery and filing a note of issue.

At the outset, a Preliminary Conference Order dated August 27, 1990 (Leonard N. Cohen, J.) directed plaintiff to file a note of issue by December 31, 1991. On August 20, 1991, defendant 53rd Street served a 90-day notice on plaintiff pursuant to CPLR 3216(b). Thereafter, in compliance with the order of Justice Cohen, plaintiff delivered a note of issue to the Clerk of the Court on or about December 30, 1991.

53rd Street sought to strike the note of issue by way of a motion returnable February 3, 1992. In a letter of the same date to all parties, 53rd Street states that it was informed by plaintiff, prior to the return date, that the Calendar Clerk had returned the note of issue and certificate of readiness. The letter goes on to state that, upon the court's suggestion, counsel prepared a Preliminary Conference Order (so ordered by Martin Schoenfeld, J.). Significantly, the order was drafted by counsel for the party defendants in...