Hensle v. 69/70 Street Associates

Appellate Terms of the Supreme Court of New York

Hensle v. 69/70 Street Associates

185 Misc. 2d 712

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 30, 2000

StatusPublished

This text of 185 Misc. 2d 712 (Hensle v. 69/70 Street Associates) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hensle v. 69/70 Street Associates, 185 Misc. 2d 712 (N.Y. Ct. App. 2000).

Pincite

Opinion

OPINION OF THE COURT

Per Curiam.

Order entered February 17, 1998 reversed, with $10 costs, cross motions denied, and the complaint reinstated as against all defendants except defendant Douglas Elliman-Gibbons and Ives.

Appeal from order denying reargument entered September 11, 1998 dismissed, without costs, as nonappealable.

The record conclusively shows, and it is undisputed, that none of the defendants herein, save for defendant and third-party plaintiff Douglas Elliman-Gibbons and Ives (DEGI), served plaintiffs with a 90-day demand to file a notice of trial or moved to dismiss the complaint for alleged failure to prosecute prior to the issuance of the court’s February 21, 1997 order granting DEGI’s formal dismissal motion. In these circumstances, the court was without power to dismiss the complaint as against the nonmoving defendants (see, CPLR 3216 [b]; Chase v Scavuzzo, 87 NY2d 228, 231-233; Carino Italian Style v Shammah, 266 AD2d 1). Nor did the 90-day demands served upon plaintiffs by several of the defendants after the February 21, 1997 order satisfy the statutory preconditions to dismissal. [714]*714“To sanction the use of the [subsequent] demands as the foundation for the [earlier] CPLR 3216 motion * * * would give [the court] power to dismiss for general delay, a power eliminated by the 1967 amendment to CPLR 3216 (L 1967, ch 770; see, Cohn v Borchard Affiliations, 25 NY2d 237, 246).” (Ciminelli Constr. Co. v City of Buffalo, 110 AD2d 1075, 1076, appeal dismissed 65 NY2d 1053.) We have considered and rejected the remaining arguments advanced by defendants-respondents.

McCooe, J. P., Davis and Gangel-Jacob, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

Per Curiam.

Order entered February 17, 1998 reversed, with $10 costs, cross motions denied, and the complaint reinstated as against all defendants except defendant Douglas Elliman-Gibbons and Ives.

Appeal from order denying reargument entered September 11, 1998 dismissed, without costs, as nonappealable.

The record conclusively shows, and it is undisputed, that none of the defendants herein, save for defendant and third-party plaintiff Douglas Elliman-Gibbons and Ives (DEGI), served plaintiffs with a 90-day demand to file a notice of trial or moved to dismiss the complaint for alleged failure to prosecute prior to the issuance of the court’s February 21, 1997 order granting DEGI’s formal dismissal motion. In these circumstances, the court was without power to dismiss the complaint as against the nonmoving defendants (see, CPLR 3216 [b]; Chase v Scavuzzo, 87 NY2d 228, 231-233; Carino Italian Style v Shammah, 266 AD2d 1). Nor did the 90-day demands served upon plaintiffs by several of the defendants after the February 21, 1997 order satisfy the statutory preconditions to dismissal. [714]*714“To sanction the use of the [subsequent] demands as the foundation for the [earlier] CPLR 3216 motion * * * would give [the court] power to dismiss for general delay, a power eliminated by the 1967 amendment to CPLR 3216 (L 1967, ch 770; see, Cohn v Borchard Affiliations, 25 NY2d 237, 246).” (Ciminelli Constr. Co. v City of Buffalo, 110 AD2d 1075, 1076, appeal dismissed 65 NY2d 1053.) We have considered and rejected the remaining arguments advanced by defendants-respondents.

McCooe, J. P., Davis and Gangel-Jacob, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

185 Misc. 2d 712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hensle-v-6970-street-associates-nyappterm-2000.

Opinion

Related

Cite This Page — Counsel Stack