Opinion
December 11, 1995
Appeal from the Supreme Court, Westchester County (Nicolai, J.).
Ordered that the order is reversed, with costs, the cross motion of the defendants Karl Moeller and Excel Acoustics, Inc., to dismiss the complaint insofar as asserted against them is denied, the complaint insofar as asserted against them is reinstated, and the plaintiffs' motion to compel the defendant Karl Moeller and the nonparty Mary Moeller, as an officer of the defendant Excel Interior Systems, Inc., to appear for depositions is granted; and it is further,
Ordered that the depositions shall be conducted at a time and place to be set in a written notice of at least 10 days, or at such time and place as the parties may agree.
In dismissing the instant complaint insofar as it is asserted against the defendants Karl Moeller and Excel Acoustics, Inc. (hereinafter Acoustics), the Supreme Court relied on a letter from the plaintiffs' former attorney to the Supreme Court, dated June 7, 1991. However, in that letter the plaintiffs' former attorney merely intended to discontinue the first of two actions involving the parties, and did not intend to discontinue the "second suit" involving the parties, i.e., the instant action, commenced under Index No. 2996/89. Accordingly, the Supreme Court erred in dismissing the instant action on the ground that it had been abandoned (see, Matter of Horton, 51 A.D.2d 856). The defendants' reliance on CPLR 3404 is without merit (see, Davila v Galarza, 221 A.D.2d 308; Beltrani v Mirabile, 141 A.D.2d 688). Accordingly, the complaint must be reinstated against the defendants Karl Moeller and Acoustics, and Karl Moeller and Mary Moeller are directed to appear for depositions. Balletta, J.P., Thompson, Joy and Goldstein, JJ., concur.