Lda Corp. v. Meringoff Properties

• Decision Date: 22 January 2002
• Docket Number: 5518,1
• Parties: LDA Corporation, et al., Plaintiffs-Appellants, v Meringoff Properties, et al., Defendants-Respondents. 5518 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT Decided on
• Court: New York Supreme Court — Appellate Division

LDA Corporation, et al., Plaintiffs-Appellants v Meringoff Properties, et al., Defendants-Respondents

5518

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

Decided on January 22, 2002

Robert N. Marx - for plaintiffs-appellants,

Kevin P. Clune - for defendants-respondents.

Tom, J.P., Andrias, Rubin, Buckley, Friedman, JJ.

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about August 31, 2000, which granted defendants' motion to dismiss the complaint for failure to prosecute, affirmed, with costs.

We reject plaintiffs' argument that plaintiff's letter dated September 27, 1996, confirming the adjournment of defendants' employee's deposition, upon the condition that plaintiffs' time to comply with defendants' CPLR 3216 90-day notice be extended without date, to allow plaintiff to take such deposition constituted an abandonment by defendants of the 90-day notice. This action was almost nine years old when defendants informed plaintiffs, by letter dated February 10, 1998, that the settlement offer was unacceptable and that their employee was ready to be deposed at a mutually convenient time. Plaintiffs' failure, in response to defendant's subsequent motion to dismiss, dated May 18, 2000, to offer a reasonable excuse for their ensuing failure to continue or resume prosecuting the action for more than two years warrants dismissal of the action (see, Baczkowski v D.A. Collins Const. Co., 89 N.Y.2d 499, 504-505; Sortino v Fisher, 20 A.D.2d 25, 29-30; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3216:29, at 656).

All concur except Rubin, J. who dissents in a memorandum as follows:

RUBIN, J. (dissenting)

While negotiations normally excuse a delay in filing a note of issue for only a limited period of time, the delay caused by defendants' duplicity concerning the deposition of a necessary witness is sufficiently extensive to constitute a waiver of their demand to file a note of issue. Furthermore, where, as here, failure to accede to discovery demands prevents the filing of a statement of readiness and note of issue, a reasonable excuse is presented; therefore, defendants' motion to dismiss the complaint pursuant to CPLR 3216(a) should not have been entertained absent service of a new 90-day demand.

This action for intentional interference with contractual relations was commenced in July 1989. Issue was joined in October of that year. Defendants served plaintiffs with a demand to resume prosecution and file a note of issue on March 28, 1996. Plaintiffs experienced difficulty obtaining the appearance of a witness, Alan Fleisch, for deposition. A stipulation dated June 19, 1996 provides that "discovery will be extended an additional ninety (90) days beyond that which was originally prescribed by service of Defendants' demand that Plaintiffs Notice Action for Trial up to and including the 1st day of October, 1996." However, the testimony of the witness could not be obtained and, in a letter dated September 27, 1996, plaintiffs' attorney confirmed a telephone conversation in which "I agreed to your request to adjourn the deposition of Alan Fleisch * * * In return, you agreed to stipulate that the time for plaintiff to file a note of issue will be extended to allow plaintiff to take Mr. Fleisch's deposition [at] a subsequent...