Hatzlachh Supply Co. v. Bank of America

Judgment, Supreme Court, New York County (Stuart C. Cohen, J.), entered on August 6, 1991, which granted plaintiffs motion for summary judgment and denied defendant’s cross-motion to dismiss for failure to prosecute, affirmed, without costs. The IAS Court properly held that there were no material issues of fact to warrant a trial in this case. Plaintiff submitted its president’s affidavit and defendant’s collection order which established that defendant improperly authorized the release of documents of title and goods in violation of plaintiff’s instructions. In contrast, defendant’s opposition — alleging that the underlying sale was consummated in furtherance of a fraudulent scheme — was solely that of an affirmation of an attorney without personal knowledge of the facts, insufficient to defeat this motion (Soffer v Elmendorf, 108 AD2d 954). Further, since defendant failed to serve plaintiff with a 90-day demand for a note of issue, the IAS Court properly denied the motion to dismiss for failure to prosecute (CPLR 3216 [b] [3]). Since this condition precedent was not met, the action was not subject to dismissal for general delay (Auerbach v Kaufman, 173 AD2d 229, 230). In addition, there is no evidence in the record that the action had been abandoned within the meaning of CPLR 3404. We have considered defendant’s other claims and find them to be without merit. Concur — Milonas, J. P., Ellerin and Kupferman, JJ.