Maren Kesar v Green Ridge Enterprises Corp.

Kesar v Green Ridge Enters. Corp. 2006 NY Slip Op 04800 [30 AD3d 471] Decided on June 13, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
DAVID S. RITTER
DANIEL F. LUCIANO
ROBERT A. SPOLZINO
MARK C. DILLON, JJ.
2005-08912 DECISION & ORDER

[*1]Maren Kesar, et al., plaintiffs,

v

Green Ridge Enterprises Corp., defendant third-party plaintiff and second third-party plaintiff-appellant; Dynamic Frame Corp., et al., third-party defendants-respondents; B & G Heating and Air Conditioning, second third-party defendant-respondent. (Index No. 6366/01)




Cartafalsa & Turpin, Pearl River, N.Y. (Stephen J. Hubel of
counsel), for defendant third-party plaintiff and second third-party
plaintiff-appellant.
Marc D. Orloff, P.C., Goshen, N.Y., for third-party defendant-
respondent Dynamic Frame Corp.
Susan B. Owens, White Plains, N.Y. (Paul L. Neugebauer of
counsel), for third-party and second
third-party defendant-respondent B &
G Heating and Air Conditioning.

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff and second third-party plaintiff appeals from an order of the Supreme Court, Orange County (Owen, J.), dated August 10, 2005, which denied its motion to vacate the dismissal of the third-party complaint and the second third-party complaint.

ORDERED that the order is reversed, on the law, with one bill of costs, the motion is granted, and the third-party complaint and the second third-party complaint are reinstated.

At a proceeding on May 25, 2005, the Supreme Court dismissed the third-party complaint and the second third-party complaint for "failure to prosecute" based on the appellant's failure to file a note of issue within 90 days of the court's directive. However, there is no evidence [*2]in the record of a valid 90-day demand (see CPLR 3216[b][3]). Accordingly, the Supreme Court was not authorized to dismiss the third-party actions for want of prosecution (see CPLR 3216[b]; O'Connell v City Wide Auto Leasing, 6 AD3d 682; Akpinar v John Hancock Mut. Life Ins. Co., 302 AD2d 337; Fernandez v Minsky, 242 AD2d 665; Ameropan Realty Corp. v Rangeley Lakes Corp., 222 AD2d 631). Nor can the dismissal be justified as one made pursuant to CPLR 3126(3), as the court attempted to do in the order on appeal. The record does not evince willful, contumacious, or bad faith conduct by the appellant which would have warranted a dismissal pursuant to CPLR 3126(3) (see Franznick v Town of Huntington, 21 AD3d 875; compare Roryal Caterers, LLC v Marine Midland, 8 AD3d 549; Alto v Gilman Mgt. Corp., 7 AD3d 650). Under the circumstances, the appellant's motion to vacate the dismissal of the third-party complaint and the second third-party complaint should have been granted.
MILLER, J.P., RITTER, LUCIANO, SPOLZINO and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court