Carven Associates v. American Home Assurance Corp.

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be reversed, without costs, and the order of Supreme Court dismissing plaintiffs’ complaint reinstated. The certified question should be answered in the negative. In the singular circumstances presented by this appeal we conclude that Supreme Court properly exercised its discretion to dismiss the complaint and the third-party complaint, even after its previous denial of defendant American Home’s motion had been affirmed by the Appellate Division, First Department (173 AD2d 369). A subsequent order of the Appellate Division, Second Department (175 AD2d 790), determined that a prior action by plaintiffs based upon the same events as the present action had been dismissed for their willful and repeated refusal to obey court-ordered disclosure and accordingly, plaintiffs were not entitled to reinstitute their action against defendant (see, CPLR 205 [a]). Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur in memorandum; Judge Smith taking no part. Order reversed, etc.