Papadopoulas v. R.B. Supply Corp.,
| Decision Date | 03 July 1989 |
| Citation | 543 N.Y.S.2d 483,152 A.D.2d 552 |
| Parties | Doris PAPADOPOULAS, Respondent, v. R.B. SUPPLY CORP. INC., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ross, Suchoff, Taroff Egert & Hankin, P.C., New York City (Martin Smalline, of counsel), for appellants.
George Nager, Mineola, for respondent.
Before MANGANO, J.P., and BROWN, KUNZEMAN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In a shareholder's derivative suit, the defendants appeal from an order of the Supreme Court, Queens County (Katz, J.), dated September 14, 1988, which denied their motion pursuant to CPLR 3216 to dismiss the complaint for lack of prosecution and granted the plaintiff's cross motion to compel an examination before trial.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, and the complaint is dismissed.
The plaintiff commenced the instant shareholder's derivative action by summons and complaint in April 1984. Issue was joined in May 1984. In June of that year, the defendants served a demand for a bill of particulars, and the plaintiff served a bill that same month. Although in 1985, the plaintiff served a notice to take the defendant Bell's deposition--a notice with which the plaintiff claims the defendant Bell has failed to comply--the record reveals that since that time the plaintiff has done little to further the prosecution of the lawsuit. In March 1988 the defendants served upon the plaintiff a 90-day notice pursuant to CPLR 3216. After the lapse of over 90 days from the service of the notice, the defendants moved to dismiss the complaint pursuant to CPLR 3216 on the ground that the plaintiff had failed to prosecute the action.
By notice of cross motion dated August 25, 1988, the plaintiff moved for an order compelling the defendant Bell to submit to an examination before trial. Although, in his supporting affidavit, the plaintiff's counsel averred that the defendants had failed to submit to discovery, counsel offered neither an excuse for the plaintiff's failure to respond to the defendants' 90-day notice, nor any facts whatsoever with respect to the underlying merits of his action.
The Supreme Court, without setting forth its reasons, denied the defendants' motion and granted the plaintiff's cross motion, directing the defendants to appear and submit to an examination before trial.
CPLR 3216 "provides a party confronted with a less than diligent adversary with a means to expedite the prosecution of the action by serving upon him a written demand that he file a note of issue within 90 days, or, in the event of a default, risk dismissal of the action" (see, Carte v. Segall, 134 A.D.2d 397, 398, 520 N.Y.S.2d 944). In order "to avoid a...
To continue reading
Request your trial
-
Wilson v. Nembhardt
...notice or to extend the 90-day period" (Turman v. Amity OBG Assocs., 170 A.D.2d 668, 567 N.Y.S.2d 87, citing Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483; Mason v. Simmons, 139 A.D.2d 880, 527 N.Y.S.2d 611). The service of a demand for a pretrial conference does not s......
-
Mosberg v. Elahi
...excuse and a good and meritorious cause of action to avoid the sanction of dismissal (see, CPLR 3216[e]; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483; Meth v. Maimonides Med. Center, 99 A.D.2d 799, 472 N.Y.S.2d 134). Although the courts have discretion to excuse delay......
-
Tierney v. OB-GYN Associates of Ithaca, OB-GYN
...the notice by filing a note of issue or moved before the default date to extend the 90-day time period (see, Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 553, 543 N.Y.S.2d 483). Instead, just a few days prior to the expiration date, plaintiffs' counsel sent a letter to defendants' cou......
-
Umeze v. Fidelis Care N.Y.
...in properly responding to the 90-day notice and that they had a meritorious cause of action"), citing Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483 (2d Dept.1989). Moreover, I believe, at this stage, the plaintiff was also obliged to show ajustifiableexcuse for the gen......