HENSLE v. 69 70 STREET ASSOCIATES (2000)

Supreme Court, Appellate Term, New York.

Janet HENSLE et al., Appellants, v. 69/70 STREET ASSOCIATES et al., Respondents, et. al., Defendant.
Dwelling Managers, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents, v. Stephen Jacobs Associates, P.C., et al., Third-Party Defendants-Respondents.
Tishman Construction Corporation of New York et al., Fourth-Party Plaintiffs-Respondents, v. Kelly Masonry Corp. et al., Fourth-Party Defendants-Respondents.

Decided: June 30, 2000

PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS and HON. PHYLLIS GANGEL-JACOB, Justices.

Fischbein, Badillo, Wagner, Harding, New York City (Bruce Lederman, Beth W. Fischbein and Dwight S. Chase of counsel), for appellants. Newman Fitch Altheim Myers P.C., New York City (Charles W. Kreines of counsel), for Dwelling Managers, Inc., defendant and third-party plaintiff-respondent. Ahmuty, Demers & McManus, New York City (Joseph A. Oliva of counsel), for 69/70 Street Associates and others, respondents and fourth-party plaintiffs-respondents. Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Deborah J. Denenberg of counsel), for Kelly Masonry Corp., fourth-party defendant-respondent. Brody, Fabiani & Cohen, New York City (Daniel O. Dietchweiler of counsel), for Wachsberger Roofing and Sheet Metal Works, Inc., third- and fourth-party defendant-respondent.

Order entered February 17, 1998 reversed, with $10 costs, cross motions denied, and the complaint reinstated as against all defendants except defendant Douglas Elliman-Gibbons and Ives.

Appeal from order denying reargument entered September 11, 1998 dismissed, without costs, as nonappealable.

The record conclusively shows, and it is undisputed, that none of the defendants herein, save for defendant and third-party plaintiff Douglas Elliman-Gibbons and Ives (“DEGI”), served plaintiffs with a 90-day demand to file a notice of trial or moved to dismiss the complaint for alleged failure to prosecute prior to the issuance of the court's February 21, 1997 order granting DEGI's formal dismissal motion. In these circumstances, the court was without power to dismiss the complaint as against the non-moving defendants (see, CPLR 3216[b]; Chase v. Scavuzzo, 87 N.Y.2d 228, 231-233, 638 N.Y.S.2d 587, 661 N.E.2d 1368; Carino Italian Style, S.R.L. v. Shammah, 266 A.D.2d 1, 697 N.Y.S.2d 609). Nor did the 90-day demands served upon plaintiffs by several of the defendants after the February 21, 1997 order satisfy the statutory preconditions to dismissal. “To sanction the use of the [subsequent] demands as the foundation for the [earlier] CPLR 3216 motion * * * would give [the court] power to dismiss for general delay, a power eliminated by the 1967 amendment to CPLR 3216 (L. 1967, ch. 770; see, Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 246 [303 N.Y.S.2d 633, 250 N.E.2d 690] ).” (Ciminelli Constr. Co. v. City of Buffalo, 110 A.D.2d 1075, 1076, 488 N.Y.S.2d 932, appeal dismissed 65 N.Y.2d 1053, 494 N.Y.S.2d 1061, 484 N.E.2d 1059). We have considered and rejected the remaining arguments advanced by defendants-respondents.

PER CURIAM.

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