DeSimone v. DiMaria

216 A.D.2d 437, 628 N.Y.S.2d 540, 1995 N.Y. App. Div. LEXIS 6472

Opinion

In an action to recover damages, inter alia, for wrongful death, the defendant appeals from an order of the Supreme Court, Queens County (Dye, J.), dated October 7, 1994, which denied his motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

Ordered that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion by denying the defendant’s motion to dismiss the complaint for failure to prosecute. The 90-day notice pursuant to CPLR 3216 was served prior to the completion of discovery (see, Markarian v Hundert, 204 AD2d 697; Martinisi v Cornwall Hosp., 177 AD2d 549), and the record fails to reveal any significant delay on the part of the plaintiff in prosecuting this action (see, CPLR 3216 [a]). Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.