Quamina v Goodman

[*1] Quamina v Goodman 2005 NY Slip Op 51798(U) [9 Misc 3d 138(A)] Decided on November 7, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 7, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PATTERSON, J.P., GOLIA and RIOS, JJ.
2003-1055 K C NO. 2003-1055 K C

Agnes Quamina, Appellant,

against

Judith Goodman and ARNOLD GOODMAN, Respondents.

Appeal from orders of the Civil Court of the City of New York, Kings County (Arthur Schack, J.), entered June 20, 2003 and November 13, 2003. The order entered June 20, 2003 granted defendants' motion to dismiss the complaint. The order entered November 13, 2003, denied plaintiff's motion to reargue.

Order entered June 20, 2003 reversed without costs and defendants' motion to dismiss the complaint denied.

Appeal from order entered November 13, 2003 dismissed.

Since more than a year had elapsed from the joinder of issue and no note of issue was filed in Supreme Court prior to the transfer of this case to Civil Court pursuant to CPLR 325 (d) and, thereafter, no notice of trial was filed in Civil Court, defendants, before moving to dismiss the complaint, were required to provide plaintiff with a written demand, pursuant to CPLR 3216, to resume prosecution of the action by filing a notice of trial within 90 days (see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPLR C3216, at 620-624; 22 NYCRR 208.15). Inasmuch as defendants failed to file such notice, the court below improperly granted their motion to dismiss. Furthermore, no appeal lies from an order denying a motion for reargument (see DeFritas v Board of Educ. of City of Mount Vernon Dist. No. 416, 129 AD2d 672 [1987]). Consequently, the appeal from the November order denying plaintiff's motion to reargue is dismissed. [*2]

Golia and Rios, JJ., concur.

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

[*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PATTERSON, J.P., GOLIA and RIOS, JJ.
AGNES QUAMINA,

Appellant,

-against-
JUDITH GOODMAN and ARNOLD GOODMAN,

Respondents.

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

While I concur with the majority opinion, I would add that the basis for the Court's dismissal below was CPLR 3404, which does not apply to Civil Court cases (see LoFredo v CMC Occupational Health Services, P.C., 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001]; Chavez v 407 Seventh Avenue Corp., No. 2004-952 [dissenting opinion of Patterson, J.] [decided herewith]).

Decision Date: November 07, 2005