Schwartz v. Nathanson

• Decision Date: 17 May 1999
• Citation: 690 N.Y.S.2d 635,261 AD2d 527
• Parties: 1999 N.Y. Slip Op. 4811 Cary SCHWARTZ, et al., appellants, v. Mark NATHANSON, et al., respondents (and another title).
• Court: New York Supreme Court — Appellate Division

Page 635

690 N.Y.S.2d 635

1999 N.Y. Slip Op. 4811

Cary SCHWARTZ, et al., appellants, v. Mark NATHANSON, et al., respondents (and another title).

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

May 17, 1999.

Howard B. Arber, Hempstead, N.Y., for appellants.

Ted M. Tobias, Melville, N.Y. (Paul E. Hennings of counsel), for respondents.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and DANIEL F. LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for injury to personal property, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Feuerstein, J.), entered January 14, 1998, which, sua sponte, dismissed their complaint, and (2) an order of the same court, dated August 31, 1998, which denied their motion, inter alia, to vacate the order entered January 14, 1998, and to direct the defendants to appear for depositions on a date certain.

ORDERED that the appeal from the order entered January 14, 1998, is dismissed, as the order is not appealable as of right and leave to appeal from that order has not been granted (see, CPLR 5701[a], [c] ); and it is further,

ORDERED that the order dated August 31, 1998, is reversed, on the law, those branches of the plaintiffs' motion which were to vacate the order entered January 14, 1998, and to direct the depositions of the defendants on a date certain are granted, the motion is otherwise denied, the order entered January 14, 1998, is vacated, and the complaint is reinstated; and it is further,

ORDERED that the defendants are directed to appear for depositions within 30 days after service upon them of a copy of this order with notice of entry; and it is further,

ORDERED that the depositions shall be conducted at a time and place to be set in a written notice of at least 10 days to be served by the plaintiffs upon the defendants, or at such time and place as the parties may agree; and it is further,

ORDERED that the plaintiffs are awarded one bill of costs.

Courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met (see, Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 502-503, 655 N.Y.S.2d 848, 678 N.E.2d 460). Here, because a certification order did not provide the 90-day notice required by CPLR 3216, there was a failure of a condition precedent, and the court was not authorized to dismiss the action on its own motion (see, Fernandez v. Minsky, 242...