AVALON LLC v. Robert Dansker, et al., Defendants. (1999)

Order, Supreme Court, New York County (Beverly Cohen, J.), entered December 11, 1998, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint pursuant to former CPLR 306-b (as added by L. 1992, ch. 216, § 7, and repealed by L. 1997, ch. 476, § 1) for failure to file proof of service and failure to state a claim for relief under the Debtor and Creditor Law, unanimously reversed, on the law, without costs, defendants-appellants' motion granted and the complaint deemed dismissed, without prejudice.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.

Given this Court's October 14, 1997 order (243 A.D.2d 307, 664 N.Y.S.2d 521) and the November 14, 1997 letter from counsel for plaintiff to counsel for defendants, there is no basis for a finding that plaintiff was stayed, either explicitly or implicitly, from completing service by timely filing the requisite returns of service.   Thus, pursuant to the provisions of former CPLR 306-b, this action “shall be deemed dismissed as to the non-appearing part[ies] with respect to whom no proof of service has been filed, without prejudice and without costs.”   Were we not dismissing the complaint against all defendants for the foregoing reason, we would still dismiss it as to defendants Gloria Dansker and Susan Bogaty for failure to state a cause of action, the complaint being devoid of any allegations which would indicate culpable conduct on their part.

MEMORANDUM DECISION.