Simmons v. McSimmons, Inc.

• Decision Date: 17 May 1999
• Citation: Simmons v. McSimmons, Inc., 690 N.Y.S.2d 643, 261 A.D.2d 547 (N.Y. App. Div. 1999)
• Parties: 1999 N.Y. Slip Op. 4778 In the Matter of Hattie SIMMONS, etc., petitioner-respondent, v. McSIMMONS, INC., etc., respondent-appellant, Robert H. Simmons, et al., additional respondents-appellants.
• Court: New York Supreme Court — Appellate Division

Page 643

690 N.Y.S.2d 643

1999 N.Y. Slip Op. 4778

In the Matter of Hattie SIMMONS, etc., petitioner-respondent,

v.

McSIMMONS, INC., etc., respondent-appellant Robert H. Simmons, et al., additional respondents-appellants.

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

May 17, 1999.

Felton & Associates, Brooklyn, N.Y. (Regina Felton of counsel), for respondent-appellant and additional respondents-appellants (one brief filed).

Storch Amini & Munves, P.C., New York, N.Y. (Janis Ettinger of counsel), for petitioner-respondent.

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN and ANITA R. FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to Business Corporation Law § 1104-a for judicial dissolution of a close corporation, McSimmons Inc., Robert H. Simmons, and McVision, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated July 25, 1997, as denied their motion to dismiss the petition for failure to prosecute.

ORDERED that the order is affirmed insofar as appealed from, with costs.

It is well established that in order to defeat a motion to dismiss a pleading for failure to prosecute, the party upon whom a demand to file a note of issue is served must demonstrate a justifiable excuse for the failure to comply with the demand and a meritorious claim (see, CPLR 3216[e]; Dick v. Samaritan Hosp., 115 A.D.2d 917, 496 N.Y.S.2d 814). Pursuant to 22 NYCRR 202.21(a) and (b), a note of issue must be accompanied by a certificate of readiness, which must state that all discovery proceedings known to be necessary are complete and that there are no outstanding requests for discovery. Here, discovery was not complete for reasons which, at least in part, were attributable to the moving parties. Inasmuch as the petitioner could not file a note of issue and certificate of readiness in the proper form, she had a justifiable excuse for the delay and dismissal was not warranted (see, Markarian v. Hundert, 180 A.D.2d 780, 580 N.Y.S.2d 428; Peterwanda, Inc. v. Birnbaum, 79 A.D.2d 1103, 435 N.Y.S.2d 851).

Moreover, where, as here, the moving party contributed to the delay, a motion to dismiss may be denied without requiring an affidavit of merit (see, Schoenhals v. Kissing Bridge Corp., 96 A.D.2d 710, 465 N.Y.S.2d 498). In any event, the petitioner submitted a verified petition, which was the equivalent of an affidavit of merit (see, CPLR 105[u] ), along with...