Carven Associates a/k/a Carvan Associates, et al., Respondents, v. American
Home Assurance Corp., Appellant. v. American Pecco Corporation, et al.,
Third-Party Defendants, and Delro Industries, Inc., Charles V. Castaldo
Construction Corp., Northberry Concrete Corp., and Litton Systems, Inc.,
Third-Party Appellants.
84 N.Y.2d 927, 644 N.E.2d 1368, 620 N.Y.S.2d 812 (1994).
November 29, 1994
1 No. 213 (1994 NY Int. 187) Decided November 29, 1994
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Andrew C. Jacobson, for appellant American Home Assurance.
David B. Hamm, for appellant Delro Industries.
Donald D. Brown, Jr., for appellant Litton Systems.
Edward J. Guardaro, for appellant Northberry Concrete.
Dennis T. D'Antonio, for respondent.
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)).
* * * * * * * * * * * * * * * *
Order reversed, without costs, order of Supreme Court dismissing
plaintiffs' complaint reinstated and certified question answered in
the negative, in a memorandum. Chief Judge Kaye and Judges Simons,
Titone, Bellacosa, Levine and Ciparick concur. Judge Smith took no
part.
SNIPPETS:
Carven Associates a/k/a Carvan Associates, et al., Respondents, v. American Home Assurance
American Pecco Corporation, et al., Third-Party Defendants, and Delro Industries, Inc.,
This memorandum is uncorrected and subject to revision before publication in the New York
for appellant American Home Assurance.
David B. Hamm, for appellant Delro Industries.
Donald D. Brown, Jr., for appellant Litton Systems.
Edward J. Guardaro, for appellant Northberry Concrete.
In the singular circumstances presented by this appeal we conclude that Supreme Court
A subsequent order of the Appellate Division, Second Department, determined that a prior
Order reversed, without costs, order of Supreme Court dismissing plaintiffs' complaint
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.
Judge Smith took no part.
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