American Federal Group, Ltd. v. Rothenberg

271 A.D.2d 351, 708 N.Y.S.2d 282, 2000 N.Y. App. Div. LEXIS 4592

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered February 5, 1999, which granted defendant’s motion to confirm the Referee’s report and dismissed the complaint pursuant to CPLR 3215 (c), unanimously affirmed, with costs.

The IAS Court properly granted the motion to dismiss (see, Winson Gems v D. Gumbiner, Inc., 85 AD2d 69, 71, affd, 57 NY2d 813). The Referee’s report turned on the credibility of the witnesses and the determinations made were supported on the record. Specifically, the Referee found that there was no meeting of the minds regarding defendant’s need to answer the complaint. Therefore, there was no “standstill” agreement between the parties that would delay the State action pending the outcome of the Federal litigation. Further, the Referee found that the complaint had been served by plaintiffs. Based on these findings, the court properly concluded that the plaintiffs failed to comply with CPLR 3215 (c) and had failed to offer a sufficient cause for their failure. We note that 222 First Ave. Realty v Vijax Fuel Oil Corp. (213 AD2d 238) does not warrant a contrary result. Concur — Williams, J. P., Mazzarelli, Rubin, Buckley and Friedman, JJ.