Rubens v. STO Industries, Inc.

160 A.D.2d 662, 559 N.Y.S.2d 630, 1990 N.Y. App. Div. LEXIS 4665

Opinion

—Order, Supreme Court, Bronx County (Hansel McGee, J.), entered April 10, 1989, which granted defendants’ motions to dismiss the action for failure to prosecute pursuant to CPLR 3216, unanimously affirmed, without costs.

In this six-year-old action, arising from alleged defects in materials and workmanship in the application of insulating and protective finishes to plaintiffs’ house, plaintiffs have yet to comply with earlier discovery directives of the court, including a directive that they submit to depositions, in 1987 and 1988. The second such discovery directive was made in the course of denying defendants’ motion in 1988 to dismiss pursuant to CPLR 3216. In these circumstances, upon plaintiffs’ continued failure to comply with the discovery directive, constituting a refusal to move the action forward, the court did not err in dismissing the action despite the defendants’ failure to serve a second CPLR 3216 90-day demand before seeking dismissal pursuant to that section a second time. (Lyons v Butler, 134 AD2d 576.) We have examined plaintiffs’ other arguments and find them to be without merit. Concur— Kupferman, J. P., Ross, Kassal, Ellerin and Wallach, JJ.