Prince of Peace Lutheran Church v. Hibner

44 A.D.2d 830, 355 N.Y.S.2d 166, 1974 N.Y. App. Div. LEXIS 5104

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1974
• Status: Published

Opinion

In an action against an architect to recover damages for defective design and failure to supervise construction, plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County, dated September 5, 1972, as, upon reargument, dismissed the complaint and denied plaintiff’s cross motion to dismiss the affirmative defense contained in defendant’s answer, with costs of the action to defendant. Order reversed insofar as appealed from, without costs, defendant’s motion to dismiss the complaint denied and plaintiff’s cross motion to dismiss the affirmative defense granted. It was improper to grant the motion to dismiss the complaint on the ground of general delay in prosecution, in the absence of proof of service of a 45-day notice in conformity with the requirements of CPLR 3216 (subd. [b], par. [3]). (Cohn v. Borchard Affiliations, 25 N Y 2d 237; Martine v. Griffiths, 39 A D 2d 553.) In the absence of arbitration and an award, CPLR 3211 furnishes no basis for a dismissal because of the presence in the contract of an arbitration provision (Langemyr v. Campbell, 23 A D 2d 371). Hence, the affirmative defense of arbitration should be stricken. Defendant may, if he be so advised, move to stay arbitration pursuant to the provisions of CFLR 75 )3 (subd. [a]). Gulotta, P. J., Hopkins, Latham, Shapiro and Cohalan, JJ., corner.