| Banik v Evy Realty, LLC |
| 2011 NY Slip Op 04185 [84 AD3d 994] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Alaka Banik et al., Respondents, v Evy Realty, LLC,Defendant/Third-Party Plaintiff-Appellant, et al., Defendant. United National Specialty InsuranceCompany et al., Third-Party Defendants-Respondents. |
—[*1] Goldstein & Handwerker, LLP, New York, N.Y. (Justin S. Blash of counsel), forplaintiffs-respondents. Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Michael A. Miranda ofcounsel), for third-party defendants-respondents.
In an action to recover damages for personal injuries, etc., the defendant Evy Realty, LLC,appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Sherman, J.), dated August 4, 2010, as, upon reargument, granted those branches of theplaintiffs' motion which were, in effect, to vacate the dismissal of the action as against it and torestore the action as against it to active status.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
On September 25, 2009, the Supreme Court, sua sponte, dismissed the action. By notice ofmotion dated February 3, 2010, the plaintiffs moved, in effect, to vacate the dismissal of theaction and to restore the action to active status. The appellant opposed the plaintiffs' motion. Inan order dated April 14, 2010, the Supreme Court, inter alia, denied those branches of theplaintiffs' motion which were, in effect, to vacate the dismissal and to restore the action asagainst the defendant Evy Realty, LLC (hereinafter Evy), to active status. In an order datedAugust 4, 2010, however, the Supreme Court granted the plaintiffs' motion for leave to reargueand, upon reargument, granted those branches of the plaintiffs' motion which had previously beendenied. Evy appeals from the order dated August 4, 2010.
Neither the order dated April 14, 2010, nor the order appealed from contain any explanationfor the original denial of those branches of the plaintiffs' motion which were, in effect, to vacatethe dismissal and to restore the action as against Evy to active status or the subsequent granting,upon reargument, of those branches of the plaintiffs' motion. In addition, the record is not clear asto why the action was dismissed on September 25, 2009, in the first instance. The record [*2]is devoid of any evidence that there was a conference scheduled forSeptember 25, 2009, and there was no order dismissing the complaint pursuant to 22 NYCRR202.27. Thus, contrary to Evy's contentions, 22 NYCRR 202.27 could not have provided thebasis for the order dated April 14, 2010, denying those branches of the plaintiffs' motion whichwere to vacate the dismissal and restore the action to active status with respect to it (see Mitskevitch v City of New York,78 AD3d 1137, 1138 [2010]; Clarkv Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511 [2005]; Murray v SmithCorp., 296 AD2d 445, 446 [2002]).
Furthermore, while the failure to comply with a court order directing the filing of a note ofissue can, in the proper circumstances, provide the basis for the dismissal of a complaint underCPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unlessthe CPLR 3216 statutory preconditions to dismissal are met (see Baczkowski v CollinsConstr. Co., 89 NY2d 499, 502-503 [1997]; Murray v Smith Corp., 296 AD2d at447; Schwartz v Nathanson, 261 AD2d 527, 528 [1999]; Schuering v Stella, 243AD2d 623, 624 [1997]). Here, a compliance conference order dated December 9, 2008, which seta date for the filing of the note of issue, did not constitute a valid 90-day demand because therewas no warning that failure to file the note of issue by June 5, 2009, would serve as a basis fordismissal under CPLR 3216 (seeSanchez v Serje, 78 AD3d 1155, 1156 [2010]; Ratway v Donnenfeld, 43 AD3d 465 [2007]; Patel v MBG Dev., Inc., 41 AD3d682, 683 [2007]). Moreover, a so-ordered stipulation dated September 24, 2009, whichextended the plaintiffs' time to file a note of issue until January 19, 2010, could not be deemed a90-day demand since it failed to advise the plaintiffs that the failure to comply therewith wouldserve as the basis for a motion to dismiss the action (see Wasif v Khan, 82 AD3d 1084 [2011]; Heifetz v Godoy, 38 AD3d 605[2007]; Wollman v Berliner, 29AD3d 786 [2006]).
Accordingly, upon reargument, the Supreme Court properly granted those branches of theplaintiffs' motion which were, in effect, to vacate the dismissal of the action as against Evy and torestore the action as against Evy to active status. Rivera, J.P., Angiolillo, Eng, Chambers andSgroi, JJ., concur.
Motion by the appellant, on an appeal from an order of the Supreme Court, Kings County,dated August 4, 2010, to strike stated portions of the brief of United National Specialty InsuranceCompany on the ground that the material "relate[s] to issues wholly unrelated to the issuesinvolved in th[e] appeal," to impose a sanction upon United National Specialty InsuranceCompany, and for an award of an attorney's fee. By decision and order on motion of this Courtdated March 10, 2011, that branch of the motion which is to strike stated portions of the brief ofUnited National Specialty Insurance Company on the ground that the material "relate[s] to issueswholly unrelated to the issues involved in th[e] appeal" was held in abeyance and referred to thepanel of Justices hearing the appeal for determination upon the argument and submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the submission of the appeal, it is,[*3]
Ordered that the branch of the motion which is to strikestated portions of the brief of United National Specialty Insurance Company is denied. Rivera,J.P., Angiolillo, Eng, Chambers and Sgroi, JJ., concur.