[*1]
Levine v Kinney on the Concourse, Inc.
2005 NYSlipOp 51650(U)
Decided on October 18, 2005
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM J. DAVIS
HON. PHYLLIS GANGEL-JACOB, Justices.
570514/04

Bernard Levine, Plaintiff-Appellant,

against

Kinney on the Concourse, Inc., KINNEY SYSTEMS, INC., BRYCON DEVELOPMENTS, INC. AND WALDBAUMS, INC., Defendants-Respondents.


Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County, entered January 30, 2003 (Wilma Guzman, J.), which granted defendants' motions to dismiss the complaint for failure to prosecute.


PER CURIAM:

Order entered January 30, 2003 (Wilma Guzman, J.) modified to deny the cross motions of defendants Brycon Developments, Inc. and Walbaums, Inc. and to reinstate the complaint as against them; as modified, order affirmed, without costs.

We find no abuse of discretion in the grant of the Kinney defendants' motion to dismiss the complaint for failure to prosecute, plaintiff having offered no excuse whatsoever for his failure to comply with said defendants' 90-day demand to resume prosecution of this 1998 negligence action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]). The action should not have been dismissed as against the remaining defendants, however, in view of their failure to serve their own statutory 90-day demands upon plaintiff (see CPLR 3126[b][3]; [*2]Walters v Hoboken Wood Flooring Corp., 6 AD3d 696 [2004]; Fischera v City of New York, 79 AD2d 597 [1980]).

This constitutes the decision and order of the Court.
Decision Date: October 18, 2005