| Willis v City of New York |
| 2014 NY Slip Op 00218 [113 AD3d 674] |
| January 15, 2014 |
| Appellate Division, Second Department |
| Dorothy Jeanine Willis, an Infant by Her Guardian,Gregory Grim, et al., Appellants, v City of New York et al., Respondents, et al.,Defendants. |
—[*1] Jeffrey D. Friedlander, Acting Corporation Counsel (Edward F.X. Hart and LeonardKoerner of counsel), for respondent City of New York. Hirschel Law Firm, P.C. (Daniel Hirschel of counsel), for respondents Diana Sulland Yong Sull.
In an action, inter alia, to recover damages for libel, defamation, and negligentsupervision, the plaintiffs appeal from so much of an order of the Supreme Court,Queens County (Flug, J.), dated June 14, 2012, as denied, in effect, as academic, thatbranch of their motion which was to compel the defendants Diana Sull, "Jane" Sull, theCity of New York, the New York City Department of Education, Richard Dodici, and"Jane" Abraham to appear for depositions and complete all outstanding discovery, andgranted those branches of the cross motion of the defendants Diana Sull and "Jane" Sull,and the separate cross motion of the defendants City of New York, New York CityDepartment of Education, Richard Dodici, and "Jane" Abraham, which were to dismissthe action pursuant to CPLR 3404 insofar as asserted against each of them.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs to the plaintiffs payable by the respondents appearing separately and filingseparate briefs, those branches of the separate cross motions which were to dismiss theaction pursuant to CPLR 3404 are denied, and the matter is remitted to the SupremeCourt, Queens County, for a determination on the merits of that branch of the plaintiffs'motion which was to compel the defendants Diana Sull, "Jane" Sull, the City of NewYork, the New York City Department of Education, Richard Dodici, and "Jane"Abraham to appear for depositions and complete all outstanding discovery.
Contrary to the respondents' contention, under the particular facts of this case, theSupreme Court's order dated April 9, 2008, was effective to return the action to pre-noteof issue status (see Dokaj vRuxton Tower Ltd. Partnership, 55 AD3d 661, 661-662 [2008]). Since CPLR3404 was inapplicable to this pre-note of issue action, it did not provide a basis fordismissal of the action (see Lanev New York City Hous. Auth., 62 AD3d 961, 961 [2009]; Sellitto v Women's Health CareSpecialists, 58 AD3d 828, 828-829 [2009]; Dokaj v Ruxton Tower Ltd. Partnership, 55 AD3d 661,661-662 [2008]; SuburbanRestoration Co., Inc. v Viglotti, 54 AD3d 750, 750-751 [2008]; Galati v C.Raimondo & Sons Constr. Co., Inc., [*2]35 AD3d805, 806 [2006]; Travis vCuff, 28 AD3d 749, 750 [2006]; see also Islam v Katz Realty Co., 296AD2d 566, 568 [2002]). The respondents were required to comply with CPLR 3216 inorder to obtain a dismissal of the action based on the plaintiffs' alleged failure toprosecute this case (see Arroyov Board of Educ. of City of N.Y., 110 AD3d 17, 19 [2013]; Lopez vImperial Delivery Serv., 282 AD2d 190, 194 [2001]).
The parties' remaining contentions either are without merit or have been renderedacademic in light of our determination.
Accordingly, the Supreme Court should have denied those branches of therespondents' separate cross motions which were to dismiss the action pursuant to CPLR3404 insofar as asserted against each of them.
Since the Supreme Court did not consider the merits of that branch of the plaintiffs'motion which was to compel the defendants Diana Sull, "Jane" Sull, City of New York,New York City Department of Education, Richard Dodici, and "Jane" Abraham to appearfor depositions and complete all outstanding discovery, the matter must be remitted to theSupreme Court, Queens County, for a determination on the merits of that branch of theplaintiffs' motion. Mastro, J.P., Roman, Miller and Hinds-Radix, JJ., concur.