Reel v. College of New Rochelle

Jun 29, 2004
Versions:8 A.D.3d 208
778 N.Y.S.2d 689
2004 N.Y. App. Div. LEXIS 8940

Order, Supreme Court, New York County (Anne E. Tar gum, J), entered on or about February 19, 2004, which granted plaintiffs motion to restore the action to the pretrial calendar, subject to certain discovery deadlines, and denied defendants’ cross motion to dismiss the action and impose costs and sanctions, unanimously affirmed, without costs.

There was no showing that this action had been abandoned. Conditions precedent to dismissal for want of prosecution require joinder of issue, passage of one year since joinder, and written demand by the party seeking dismissal, by registered or certified mail, that the plaintiff serve and file a note of issue within 90 days (CPLR 3216 [b]). Questions remain, however, regarding service of the 90-day demand on plaintiffs counsel at the proper address (Chase v Scavuzzo, 87 NY2d 228 [1995]). There was also no clear showing that failure to comply with discovery was willful, contumacious or in bad faith, coupled with the absence or inadequacy of excuse (compare Castrignano v Flynn, 255 AD2d 352 [1998]; CPLR 3126). Costs and sanctions were not warranted absent a showing of frivolous conduct by plaintiffs counsel to deliberately delay or prolong the action (22 NYCRR 130-1.1). Concur—Tom, J.P., Andrias, Williams, Marlow and Gonzalez, JJ.