Combs v. Lewis

Appellate Division of the Supreme Court of New York

Combs v. Lewis

249 A.D.2d 156, 671 N.Y.S.2d 255, 1998 N.Y. App. Div. LEXIS 4415

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 23, 1998

StatusPublished

This text of 249 A.D.2d 156 (Combs v. Lewis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Combs v. Lewis, 249 A.D.2d 156, 671 N.Y.S.2d 255, 1998 N.Y. App. Div. LEXIS 4415 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about August 8, 1997, which denied defendants’ motion to dismiss the complaint for want of prosecution, unanimously affirmed, without costs.

“[C]ourts do not possess the power to dismiss an action for general delay where plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216 (b)” (Chase v Scavuzzo, 87 NY2d 228, 233). Here, the only 90-day demand that defendants ever made was in May 1990, which demand was tolled and effectively withdrawn by the stipulation dated November 17, 1990. There was, as a result, no operative demand in March 1997, when defendants renewed their motion to dismiss the complaint pursuant to CPLR 3216. Consequently, the IAS court properly denied the motion to dismiss. Concur — Lerner, P. J., Nardelli, Wallach, Williams and Saxe, JJ.

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—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about August 8, 1997, which denied defendants’ motion to dismiss the complaint for want of prosecution, unanimously affirmed, without costs.

“[C]ourts do not possess the power to dismiss an action for general delay where plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216 (b)” (Chase v Scavuzzo, 87 NY2d 228, 233). Here, the only 90-day demand that defendants ever made was in May 1990, which demand was tolled and effectively withdrawn by the stipulation dated November 17, 1990. There was, as a result, no operative demand in March 1997, when defendants renewed their motion to dismiss the complaint pursuant to CPLR 3216. Consequently, the IAS court properly denied the motion to dismiss. Concur — Lerner, P. J., Nardelli, Wallach, Williams and Saxe, JJ.

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Bluebook (online)

249 A.D.2d 156, 671 N.Y.S.2d 255, 1998 N.Y. App. Div. LEXIS 4415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/combs-v-lewis-nyappdiv-1998.

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