Greene v. New England Mutual Life Insurance

Appellate Division of the Supreme Court of New York

Greene v. New England Mutual Life Insurance

257 A.D.2d 521, 685 N.Y.S.2d 9, 1999 N.Y. App. Div. LEXIS 644

Appellate Division of the Supreme Court of the State of New York·Decided January 26, 1999·Published·Cited by 3 cases

Opinion

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered August 13, 1998, denying defendant’s motion to dismiss the complaint pursuant to CPLR 3126 as a discovery sanction and pursuant to CPLR 3216 for failure to prosecute, unanimously affirmed, with costs.

[522] Inasmuch as it had been ordered that plaintiffs deposition was to take place at a time mutually convenient to the parties and defendant nonetheless noticed the deposition without consulting -plaintiff, the motion court properly determined that plaintiffs failure to appear did not warrant dismissal of the complaint pursuant to CPLR 3126. We note in this connection the absence of any indication that defendant made a further request for plaintiffs deposition during the subsequent years of delay about which it now complains, or that it sought sanctions during that intervening period. Dismissal pursuant to CPLR 3216 for failure to prosecute was also properly denied by the motion court since it is undisputed that defendant failed to serve the 90-day demand to prosecute mandated by CPLR 3216 as a condition of dismissal thereunder (see, Baczkowski v Collins Constr. Co., 89 NY2d 499, 503).

We have considered defendant’s other arguments and find them to be unpersuasive. Concur—Rosenberger, J. P., Ellerin, Tom and Mazzarelli, JJ.

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—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered August 13, 1998, denying defendant’s motion to dismiss the complaint pursuant to CPLR 3126 as a discovery sanction and pursuant to CPLR 3216 for failure to prosecute, unanimously affirmed, with costs.

[522] Inasmuch as it had been ordered that plaintiffs deposition was to take place at a time mutually convenient to the parties and defendant nonetheless noticed the deposition without consulting -plaintiff, the motion court properly determined that plaintiffs failure to appear did not warrant dismissal of the complaint pursuant to CPLR 3126. We note in this connection the absence of any indication that defendant made a further request for plaintiffs deposition during the subsequent years of delay about which it now complains, or that it sought sanctions during that intervening period. Dismissal pursuant to CPLR 3216 for failure to prosecute was also properly denied by the motion court since it is undisputed that defendant failed to serve the 90-day demand to prosecute mandated by CPLR 3216 as a condition of dismissal thereunder (see, Baczkowski v Collins Constr. Co., 89 NY2d 499, 503).

We have considered defendant’s other arguments and find them to be unpersuasive. Concur—Rosenberger, J. P., Ellerin, Tom and Mazzarelli, JJ.

Greene v. New England Mutual Life Insurance, 257 A.D.2d 521, 685 N.Y.S.2d 9, 1999 N.Y. App. Div. LEXIS 644 (N.Y. Ct. App. 1999).

Pincite

257 A.D.2d 521 (Greene v. New England Mutual Life Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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