Ryan v. Borg

Full title: JOHN C. RYAN, Respondent, v. HAROLD BORG, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 14, 1994

201 A.D.2d 550 (N.Y. App. Div. 1994)

607 N.Y.S.2d 732

Opinion

February 14, 1994

Appeal from the Supreme Court, Queens County (Durante, J.).

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 A.D.2d 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 A.D.2d 911; cf., Matter of Vickery v. Village of Saugerties, 106 A.D.2d 721, affd 64 N.Y.2d 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 A.D.2d 540, affd on other grounds 52 N.Y.2d 868). Balletta, J.P., Santucci, Krausman and Florio, JJ., concur.