Di Roma v. Tripodi Eyewear International, Inc.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered March 24, 1994, which denied plaintiffs motion for summary judgment pursuant to CPLR 3212, and which denied defendants’ cross-motion for summary judgment pursuant to CPLR 3212 dismissing the complaint, affirmed, without costs. The IAS Court properly determined that the parties’ respective motions for summary judgment were precluded by triable issues of fact, requiring discovery, with respect to the plaintiffs reasons for its admitted ten year delay in pursuing the action, whether abandonment, estoppel or waiver are available as viable defenses to the plaintiffs delayed claim, and with respect to the extent of prejudice, if any, to the defendants by reason of the delay (Ellis v Allstate Ins. Co., 151 AD2d 543, 544). The record below reveals that, in the absence of discovery, plaintiff has failed to tender sufficient evidence to eliminate any material issues of fact as to whether it has abandoned, [537] waived or should be estopped from asserting its claim on four promissory notes and a guaranty by reason of its ten year delay in pursuing the action (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Dismissal of the underlying action as having been abandoned pursuant to CPLR 3404 or for failure to prosecute pursuant to CPLR 3216 is, at present, unavailable. The complaint may not be dismissed as abandoned pursuant to CPLR 3404 unless the action has been marked off the court’s calendar and not restored within one year (Auerbach v Kaufman, 173 AD2d 229, 230), and no action may be dismissed for failure to prosecute pursuant to CPLR 3216 unless the party seeking dismissal first demands that a note of issue be served and filed and the plaintiff fails to comply with the demand within ninety days (Village of Tarrytown v Woodland Lake Estates, 200 AD2d 738, 739). Further, the parties’ conflicting affidavits raise a triable issue of fact as to whether the plaintiff should be estopped from asserting its claim on the notes and guaranty, where, as here, defendants have alleged that they lacked knowledge of the fact that the plaintiff, after its ten year delay, intended to pursue the action, that the defendants relied in good faith on the plaintiff’s conduct in allegedly having settled the action, and that the defendants, as a result of that reliance, thereafter experienced a prejudicial change in their position, which resulted in the destruction of their legal files, to their detriment (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184). The parties’ conflicting affidavits also raise a triable issue as to whether the plaintiff intended to waive or relinquish its claim by its ten year delay in prosecuting the action (Hadden v Consolidated Edison Co., 45 NY2d 466, 469). Concur — Murphy, P. J., Rubin, Asch and Williams, JJ.