Silver Group Inc. v. Nichols Enterprises, Inc.

204 A.D.2d 991, 614 N.Y.S.2d 952

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1994
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action seeking to recover real estate commissions allegedly due from defendants in connection with the construction and sale of a building. The IAS Court granted defendants’ motion to dismiss the complaint and ordered plaintiffs to serve an amended complaint within 45 days of service and filing of the order. Plaintiffs unsuccessfully attempted to serve an amended complaint more than 45 days after service and filing of the order; the court denied plaintiffs’ motion to require defendants to accept late service. Plaintiffs’ failure to comply with the original order requires dismissal of the action for failure to prosecute (see, Kelly v Rosenthal, 176 AD2d 283, Iv denied 79 NY2d 751). Additionally, the amended complaint fails to address the deficiencies of the original complaint. In any event, neither of the orders addressed the merits and plaintiffs are not precluded from commencing a new action within the applicable Statute of Limitations. (Appeal from Order of Supreme Court, Monroe County, Cornelius, J.—Dismiss Complaint.) Present—Denman, P. J., Lawton, Fallon, Doerr and Davis, JJ.