Shopwell, Inc. v. Hartz Mountain Industries, Inc.

198 A.D.2d 158, 605 N.Y.S.2d 844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Carol Arber, J.), entered on or about May 11, 1993, inter alia, denying defendants Kane Carpet Company and Hertz Mountain Industries’ motion and cross-motion, respectively, to dismiss plaintiff’s complaint for failure to prosecute pursuant to CPLR 3216 (b) (3) on the condition plaintiff serve and file note of issue within 20 days of date of entry, unanimously affirmed, without costs.

Plaintiff established that its failure to comply with the 90-day notice demand was attributable to law office failure, more particularly, the failure of a receptionist to advise counsel of the receipt of the 90-day notice. In the absence of any demonstrable prejudice to defendants, such noncompliance was excusable (CPLR 2005). Further, plaintiff has demonstrated the existence of a meritorious cause of action. Concur — Murphy, P. J., Carro, Ellerin and Nardelli, JJ.