Griffith v. Wray

• Citation: 970 N.Y.S.2d 458,2013 N.Y. Slip Op. 05615,109 A.D.3d 512
• Parties: Edward GRIFFITH, et al., respondents, v. Clifford WRAY, appellant, et al., defendants.
• Decision Date: 14 August 2013
• Court: New York Supreme Court Appellate Division

109 A.D.3d 512
970 N.Y.S.2d 458
2013 N.Y. Slip Op. 05615

Edward GRIFFITH, et al., respondents,
v.
Clifford WRAY, appellant, et al., defendants.

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

Aug. 14, 2013.

Enealia S. Nau, Brooklyn, N.Y. (Arnold J. Ludwig of counsel), for appellant.

Robert P. Santoriella P.C., Brooklyn, N.Y. (Aaron DePass of counsel), for respondents.

[109 A.D.3d 513]In an action, inter alia, for a judgment declaring that certain deeds are invalid, the defendant Clifford Wray appeals from an order of the Supreme Court, Kings County (Dabiri, J.), dated January 5, 2012, which granted that branch of the plaintiffs' motion which was, in effect, for leave to renew both their opposition to his motion, among other things, to dismiss the complaint insofar as asserted against him pursuant to CPLR 3216 and their cross motion, in effect, for leave to enlarge the time to serve and file a note of issue, which had been determined in an order of the same court dated August 30, 2011, and, upon renewal, vacated the order dated August 30, 2011, and thereupon denied his motion, inter alia, to dismiss the complaint insofar as asserted against him, and granted the plaintiffs' cross motion, in effect, for leave

[970 N.Y.S.2d 459]

to enlarge the time to serve and file a note of issue.

ORDERED that the order dated January 5, 2012, is affirmed, with costs.

“[W]hile the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for the dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing 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 City Hous. Auth., 21 A.D.3d 522, 522, 801 N.Y.S.2d 43;Murray v. Smith Corp., 296 A.D.2d 445, 446–447, 744 N.Y.S.2d 901). “A 90–day demand to file a note of issue is one of the statutory preconditions” ( Neary v. Tower Ins., 94 A.D.3d 723, 724, 941 N.Y.S.2d 277;see CPLR 3216[b][3]; Maharaj v. LaRoche, 69 A.D.3d 684, 684, 891 N.Y.S.2d 653).

Here, the defendant Clifford Wray did not serve a 90–day demand, but relied instead on an order dated June 13, 2008, which instructed the plaintiffs that the failure to serve and file a note of issue within 90 days would result in dismissal of the...