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Willis v. City of New York

Supreme Court of New York, Second Department

January 15, 2014

Dorothy Jeanine Willis, etc., et al., appellants,
v.
City of New York, et al., respondents, et al., defendants. Index No. 30136/03

Ginsberg & Katsorhis, P.C., Flushing, N.Y. (Nicole D. Katsorhis of counsel), for appellants.

Jeffrey D. Friedlander, Acting Corporation Counsel (Edward F.X. Hart and Leonard Koerner of counsel), for respondent City of New York.

Hirschel Law Firm, P.C. (Daniel Hirschel of counsel), for respondents Diana Sull and Yong Sull.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for libel, defamation, and negligent supervision, the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Flug, J.), dated June 14, 2012, as denied, in effect, as academic, that branch of their motion which was to compel the defendants Diana Sull, "Jane" Sull, the City of New York, the New York City Department of Education, Richard Dodici, and "Jane" Abraham to appear for depositions and complete all outstanding discovery, and granted those branches of the cross motion of the defendants Diana Sull and "Jane" Sull, and the separate cross motion of the defendants City of New York, New York City Department of Education, Richard Dodici, and "Jane" Abraham, which were to dismiss the action pursuant to CPLR 3404 insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs to the plaintiffs payable by the respondents appearing separately and filing separate briefs, those branches of the separate cross motions which were to dismiss the action pursuant to CPLR 3404 are denied, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of that branch of the plaintiffs' motion which was to compel the defendants Diana Sull, "Jane" Sull, the City of New York, the New York City Department of Education, Richard Dodici, and "Jane" Abraham to appear for depositions and complete all outstanding discovery.

Contrary to the respondents' contention, under the particular facts of this case, the Supreme Court's order dated April 9, 2008, was effective to return the action to pre-note of issue status (see Dokaj v Ruxton Tower Ltd. Partnership, 55 A.D.3d 661, 661-662). Since CPLR 3404 was inapplicable to this pre-note of issue action, it did not provide a basis for dismissal of the action (see Lane v New York City Hous. Auth., 62 A.D.3d 961, 961; Sellitto v Women's Health Care Specialists, 58 A.D.3d 828, 828-829; Dokaj v Ruxton Tower Ltd. Partnership, 55 A.D.3d 661, 661-662; Suburban Restoration Co. Inc. v Viglotti, 54 A.D.3d 750, 750-751; Galati v C. Raimondo & Sons Constr. Co., 35 A.D.3d 805, 806; Travis v Cuff, 28 A.D.3d 749, 750; see also Islam v Katz Realty Co., 296 A.D.2d 566, 568). The respondents were required to comply with CPLR 3216 in order to obtain a dismissal of the action based on the plaintiffs' alleged failure to prosecute this case (see Arroyo v Board of Educ. of City of N.Y., 110 A.D.3d 17, 19; Lopez v Imperial Delivery Serv., 282 A.D.2d 190, 194).

The parties' remaining contentions either are without merit or have been rendered academic in light of our determination.

Accordingly, the Supreme Court should have denied those branches of the respondents' separate cross motions which were to dismiss the action pursuant to CPLR 3404 insofar as asserted against each of them.

Since the Supreme Court did not consider the merits of that branch of the plaintiffs' motion which was to compel the defendants Diana Sull, "Jane" Sull, City of New York, New York City Department of Education, Richard Dodici, and "Jane" Abraham to appear for depositions and complete all outstanding discovery, the matter must be remitted to the Supreme Court, Queens County, for a determination on the merits of that branch of the plaintiffs' motion.

MASTRO, J.P., ROMAN, MILLER and HINDS-RADIX, JJ., concur.


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