Allstate Insurance v. Seibert

100 A.D.2d 562, 473 N.Y.S.2d 488, 1984 N.Y. App. Div. LEXIS 17536

Opinion

— In a negligence action to recover damages for injury to property, defendants John Seibert, individually and doing business as Sei-Be General Contractors and Carpenters, and Consolidated Edison Service separately appeal from an order of the Supreme Court, Westchester County (Delaney, J.), entered August 16, 1983, which denied their motions to dismiss the complaint as to them pursuant to CPLR 3216 for failure to prosecute the action, and granted plaintiff’s cross motion to the extent of granting it leave to file a note of issue and statement of readiness within 20 days after service upon it of a copy of the order appealed from, with notice "of entry thereof. H Order reversed, as a matter of discretion, with one bill of costs, motions to dismiss the complaint as to appellants granted, and plaintiff’s cross motion denied in its entirety. K In light of the facts that the event giving rise to this action occurred in 1973, the action is more than seven years old, no discovery has occurred since March, 1980, and a 90-day notice pursuant to CPLR 3216 was ignored for approximately nine months, it was an improvident exercise of discretion to deny defendants’ requests to dismiss the complaint as to them (see CPLR 3216; Monteferrante v New York City Fire Dept., 74 AD2d 538, affd 53 NY2d 653; Abrams, Kochman, Rathskeller v Esquire Motels, 79 AD2d 879). Mollen, P. J., Gibbons, Thompson and Rubin, JJ., concur.