Opinion
April 25, 2000.
Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered February 5, 1999, which granted defendant's motion to confirm the referee's report and dismissed the complaint pursuant to CPLR 3215(c), unanimously affirmed, with costs.
Joseph P. Dineen, for plaintiffs-appellants.
Larry F. Gainen, for defendant-respondent.
WILLIAMS, J.P., MAZZARELLI, RUBIN, BUCKLEY, FRIEDMAN, JJ.
The IAS court properly granted the motion to dismiss (see, Charles F. Winson Gems, v. D. Gumbiner, Inc., 85 A.D.2d 69, 71, affd 57 N.Y.2d 813). The referee's report turned on the credibility of the witnesses and the determinations made were supported on the record. Specifically, the referee found that there was no meeting of the minds regarding defendant's need to answer the complaint. Therefore, there was no "standstill" agreement between the parties that would delay the State action pending the outcome of the Federal litigation. Further, the referee found that the complaint had been served by plaintiffs. Based on these findings, the court properly concluded that the plaintiffs failed to comply with CPLR 3215(c) and had failed to offer a sufficient cause for their failure. We note that 222 First Avenue Realty, Inc. v. Vijax Fuel Oil Corp. ( 213 A.D.2d 238) does not warrant a contrary result.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.