Combs v. Lewis

Full title: J. GERARD COMBS et al., Respondents, v. MARC LEWIS et al., Appellants

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 23, 1998

249 A.D.2d 156 (N.Y. App. Div. 1998)

671 N.Y.S.2d 255

Opinion

April 23, 1998

Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).

"[C]ourts do not possess the power to dismiss an action for general delay where plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216 (b)" ( Chase v. Scavuzzo, 87 N.Y.2d 228, 233). Here, the only 90-day demand that defendants ever made was in May 1990, which demand was tolled and effectively withdrawn by the stipulation dated November 17, 1990. There was, as a result, no operative demand in March 1997, when defendants renewed their motion to dismiss the complaint pursuant to CPLR 3216. Consequently, the IAS court properly denied the motion to dismiss.

Concur — Lerner, P.J., Nardelli, Wallach, Williams and Saxe, JJ.