Walker v. Gibbons

• Court: New York Supreme Court Appellate Division
• Citation: 26 N.Y.S.3d 463 (Mem),137 A.D.3d 483
• Parties: Bruce WALKER, Plaintiff–Appellant, v. Arthur GIBBONS, doing business as Gibbons Holding Company, Defendant–Respondent, Back to Jerusalem Pentecostal Mission, et al., Defendants.
• Decision Date: 08 March 2016

137 A.D.3d 483
26 N.Y.S.3d 463 (Mem)

Bruce WALKER, Plaintiff–Appellant,
v.
Arthur GIBBONS, doing business as Gibbons Holding Company, Defendant–Respondent,

Back to Jerusalem Pentecostal Mission, et al., Defendants.

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

March 8, 2016.

Ferro, Kuba, Mangano, Sklyar, P.C., Hauppauge (Kenneth Mangano of counsel), for appellant.

Paganini, Cioci, Pinter, Cusumano & Farole, Melville (Jerika Accardy of counsel), for respondent.

26 N.Y.S.3d 464

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered October 8, 2013, which granted defendant Arthur Gibbons d/b/a Gibbons Holding Company's (Arthur Gibbons) motion and defendants Back to Jerusalem Pentecostal Mission and Lurena Felder Sutton's cross motion to dismiss the complaint for failure to prosecute, unanimously reversed, on the law and the facts, without costs, and the motion and cross motion denied.

In this action for personal injuries, we are satisfied that plaintiff's failure to file a note of issue within 90 days of defendant Arthur Gibbons's CPLR 3216 demand was largely attributable to defendant's refusal to comply with the notices to take the outstanding deposition of its employee and for an inspection of its premises (see Donegan v. St. Joseph's Med. Ctr., 283 A.D.2d 152, 724 N.Y.S.2d 582 [1st Dept.2001] ). Accordingly, defendant Arthur Gibbons's motion to dismiss should have been denied.

Also, defendants Back to Jerusalem Pentecostal Mission and Lurena Felder Sutton's cross motion for dismissal of the complaint for failure to prosecute should have been denied for the additional reason that they did not serve their own 90–day notice (see Donnell v. Madison Ave.–53rd St. Corp., 214 A.D.2d 307, 624 N.Y.S.2d 427 [1st Dept.1995] ; Juracka v. Ferrara, 137 A.D.2d 921, 923, 524 N.Y.S.2d 885 [3d Dept.1988], lv. dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 47 [1988] ; CPLR 3216[b][3] ).

MAZZARELLI, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, JJ., concur.