(DOWNLOAD) "Frank L. Ciminelli Construction Co." by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Frank L. Ciminelli Construction Co.
- Author : Supreme Court of New York
- Release Date : January 05, 1985
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 60 KB
Description
Order unanimously reversed, on the law, without costs, and motions denied. Memorandum: Plaintiff appeals from an order granting motions made on February 10, 1984 by defendant Clarence Materials Corp. and defendant architects and by three third-party defendants to dismiss the complaint for failure to prosecute pursuant to CPLR 3216. It is conceded that none of the moving parties had fulfilled the requirement of CPLR 3216 (b) (3) by serving a 90-day demand for the specific purpose of bringing on the motions. We reverse. The conditions precedent to bringing a motion to dismiss for failure to prosecute under CPLR 3216 must be complied with strictly (see, 4 Weinstein-Korn-Miller, NY Civ Prac P3216.07; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3216:14, p 925; see also, Central School Dist. No. 1 v Perfetto & Whalen Constr. Corp., 79 A.D.2d 755, affd 53 N.Y.2d 1034). Because no 90-day demand had been served, the court was without power to grant the motions. We reject the contention of respondents that the 90-day demands dated April 11, 1983, which had set the stage for earlier CPLR 3216 motions made by two of the third-party defendants on September 1, 1983, were still in effect for purposes of the CPLR 3216 motions made on February 10, 1984. Special Term had denied the earlier CPLR 3216 motions unconditionally and there was nothing in the court's order or memorandum decision to indicate that the April 11, 1983 demands were continued or extended or directing plaintiffs to take any action. To sanction the use of the April 11, 1983 demands as the foundation for the second CPLR 3216 motions would give Special Term 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). Defendant and third-party plaintiff Clarence has not appealed from the dismissal of its third-party complaint and, because a reversal of this dismissal is not necessary in order to give full relief to appellants here, we cannot as an appellate court reinstate the third-party complaint (see, Hecht v City of New York, 60 N.Y.2d 57, 61-63). Clarence may, however, move at Special Term to vacate the dismissal pursuant to CPLR 5015 (a) (5); because the foundation for dismissal of the third-party complaint has been destroyed by our reinstatement of the complaint herein, such motion should be granted in the interest of justice (see, McMahon v City of New York, 105 A.D.2d 101; Feldberg v Howard Fulton St., 44 Misc. 2d 218, affd 24 A.D.2d 704). (Appeal from order of Supreme Court, Erie County, Fudeman, J. -- dismiss complaint.) Present -- Hancock, Jr., J.P., Callahan, Doerr, Denman and O'Donnell, JJ.
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