Fishman v Our Kids Day Camp

[*1] Fishman v Our Kids Day Camp 2006 NY Slip Op 51329(U) [12 Misc 3d 139(A)] Decided on June 30, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1697 Q C. NO.2005-1697 Q C

Irene Fishman, an infant, by his mother and natural guardian, Ianina Fishman, and Ianina Fishman, individually, Respondents,

against

Our Kids Day Camp, Appellant.

Appeal by defendant from an order of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered May 23, 2005. The order, insofar as appealed from, denied defendant's motion to dismiss the complaint.

Order, insofar as appealed from, reversed without costs and defendant's motion to dismiss the complaint granted.

In August 1996, plaintiffs commenced the instant action in Supreme Court, Queens County, and filed a note of issue in March 2000. The case was subsequently transferred to the Civil Court pursuant to CPLR 325 (d) and, upon such transfer, was placed on the trial calendar (see 22 NYCRR 208.15) in May 2001. Thereafter, in March 2003, the parties agreed by stipulation to, inter alia, have the case stricken from the calendar. After more than two years had elapsed, defendant moved to restore the case to the calendar and dismiss the complaint due to plaintiffs' failure to prosecute. By order entered May 23, 2005, the court below granted that part of the motion seeking restoration and denied that part seeking dismissal on the ground that defendant had not complied with the provisions of CPLR 3216.

In Chavez v 407 Seventh Ave. Corp. (10 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2005]), a notice of trial had been filed and the case had been placed on the trial calendar before it was marked off the calendar in 2001. Two years later, the defendants moved to dismiss the complaint pursuant to CPLR 3404. The Civil Court granted the motion. This court affirmed the order, holding that the dismissal provision of CPLR 3404 is applicable to the Civil Court of the City of New York. Similarly, in the instant case, the complaint should have been dismissed pursuant to CPLR 3404 and, contrary to the determination of the court below, defendant did not [*2]have to comply with the 90-day notice requirement of CPLR 3216 under the circumstances presented.

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion to dismiss the complaint is granted.

Golia and Belen, JJ., concur.

Weston Patterson, J.P., concurs in a separate memorandum.

Weston Patterson, J.P., concurs in the following memorandum:

On constraint of Chavez v 407 Seventh Ave. Corp. (10 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2005]), I concur with the majority opinion. However, I would note, in passing, that the better practice in this case would have been for defendant to serve a 90-day demand pursuant to CPLR 3216 (see id., dissenting opinion of Patterson, J.).
Decision Date: June 30, 2006