JMS Enterprises, Inc. v. Belfield

114 A.D.2d 886, 495 N.Y.S.2d 652, 1985 N.Y. App. Div. LEXIS 53914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1985
• Status: Published

Opinion

—In an action to recover money damages arising from an alleged fraudulent conspiracy to deprive plaintiffs of a contracting job, defendants separately appeal from an order of the Supreme Court, Nassau County (Brucia, J.), dated March 18, 1985, which granted plaintiffs’ motion, inter alia, for an order vacating the 90-day notice served by defendant Belfield and denied defendant Belfield’s cross motion for an order dismissing the action for failure to prosecute.

Appeal by defendant Belfield dismissed as abandoned, without costs or disbursements.

Upon the appeal by defendant Matkovic, order affirmed, with costs to respondents payable by appellant Matkovic.

In view of the meritorious nature of plaintiffs’ case, the absence of prejudice to defendants and the clear intention of plaintiffs not to abandon the action, Special Term did not err in granting plaintiffs’ motion to vacate the 90-day notice and denying the cross motion to dismiss the complaint (see, Zaldua v Metropolitan Suburban Bus Auth., 97 AD2d 842, 843, appeal dismissed 61 NY2d 905). Under the circumstances, plaintiffs’ brief delay in moving to vacate the 90-day notice and for leave to amend their complaint was excusable. Mangano, J. P., Bracken, Weinstein, Lawrence and Kooper, JJ., concur.