Kashti v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: Kashti v. City of New York, 480 N.Y.S.2d 246, 104 A.D.2d 853 (N.Y. App. Div. 1984)
• Decision Date: 09 October 1984
• Parties: Esther KASHTI, et al., Respondents, v. The CITY OF NEW YORK, Defendant, and William Crawford, Appellant.

Page 246

480 N.Y.S.2d 246

104 A.D.2d 853

Esther KASHTI, et al., Respondents, v. The CITY OF NEW YORK, Defendant and William Crawford, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 9, 1984.

Richard Hartman, Little Neck (Bruce R. Bekritsky, of counsel), for appellant.

Myron G. Lasser, P.C., Staten Island (Bernard M. Alter, Brooklyn, of counsel; Angelyn Johnson, Freeport, on the brief), for respondents.

Before THOMPSON, J.P., and WEINSTEIN, BROWN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., defendant Crawford appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County, dated December 13, 1983, as denied those branches of his motion which sought an order striking plaintiffs' note of issue and dismissing the complaint as to him pursuant to CPLR 3216 for failure to timely prosecute the action.

Order modified, as a matter of discretion, by adding thereto a provision conditioning the denial of the aforenoted branches of defendant Crawford's motion upon payment of $500 by plaintiffs personally to defendant Crawford. As so modified, order affirmed insofar as appealed from, without costs or disbursements. The payment shall be made by plaintiffs personally within 30 days after service upon them of a copy of the order to be made hereon, with notice of entry. In the event such condition is not complied with, order reversed insofar as appealed from, with costs, note of issue stricken, and complaint dismissed with respect to defendant Crawford.

As excuses for the delay, plaintiffs note that they were without counsel when defendant Crawford served a 90-day demand on them and that the subject demand was never received. However, defendant Crawford...