Ryan v. Borg

In an action to recover damages for legal malpractice, the defendant appeals from stated portions of an order of the Supreme Court, Queens County (Durante, J.), dated November 4, 1991, which, inter alia, denied his application, in effect, to dismiss the action for failure to prosecute. Ordered that the order is affirmed insofar as appealed from, with costs. The instant action was commenced in 1979. The defendant moved to dismiss the action as time barred. That motion was denied. In May 1982 this Court modified that order, and directed a hearing on the issue (see, Ryan v Borg, 88 AD2d 637). In May 1991 the plaintiff moved to have the matter set down for a hearing, as directed by this Court. The defendant opposed that motion, and argued that the action should be dismissed for failure to prosecute. In the order appealed from, the plaintiff’s motion was granted and the cross application was denied. Since the defendant never sought dismissal of this action for failure to prosecute prior to the plaintiff’s motion to set the matter down for a hearing, and failed to utilize CPLR 3216 to compel the plaintiff to resume prosecution, the Supreme Court properly granted the plaintiff’s motion and refused to dismiss the action. Further, we reject the defendant’s contention that laches bars the continuation of this action. Inasmuch as the defendant himself could have moved this action forward by asking the Supreme Court to schedule a hearing pursuant to the 1982 order of this Court, thus avoiding any prejudice, we find that the Supreme Court correctly rejected the defendant’s claim that the action is barred by laches (see, e.g., Walsh v Morris, 126 AD2d 911; cf., Matter of Vickery v Village of Saugerties, 106 AD2d 721, affd 64 NY2d 1161). Finally, we note that the defendant did not waive his right to appellate review by participating in the hearing which was held on the Statute of Limitations question while this appeal was pending (see, Jamaica Buses v Connor, 78 AD2d 540, affd on other grounds 52 NY2d 868). Balletta, J. P., Santucci, Krausman and Florio, JJ., concur.