CONKLIN v. St. John's Queens Hospital, et al., First and Second Third-Party Defendants-Appellants. (1997)

In an action to recover damages for medical malpractice and wrongful death, the defendant third-party plaintiff James P. Tierney appeals, the first and second third-party defendant Corazon L. Alialy appeals, and the first and second third-party defendants St. John's Queens Hospital and The Catholic Medical Center of Brooklyn and Queens, Inc., separately appeal, as limited by their notices of appeal and briefs, from so much of an order of the Supreme Court, Queens County (Lane, J.), dated December 20, 1994, as (1) granted the plaintiffs' motion to strike their 90-day notices to prosecute under CPLR 3216(b)(3), (2) denied their separate cross motions to toll the accrual of interest, and (3) denied their separate cross motions to dismiss the plaintiffs' complaint pursuant to CPLR 3216 for failure to prosecute.   Justice Friedmann has been substituted for the late Justice Hart (see, 22 NYCRR 670.1[c] ).

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court did not err in striking the 90-day notices to prosecute, and in denying the cross motions to dismiss for failure to prosecute.   At the time the 90-day notices at issue were served, it was understood between the parties and the court that the entire action had been stayed because of the bankruptcy of a codefendant, and that a motion to sever that codefendant was required in order for the action to proceed.   In addition, we are satisfied that the action was delayed in part because the defendants had failed to comply with the plaintiffs' disclosure requests.

We reject the defendants' contention that the accrual of interest (see, EPTL 5-4.3) should be tolled under equitable estoppel principles.

MEMORANDUM BY THE COURT.