Opinion
June 22, 1995
Appeal from the Supreme Court, New York County (Kristin Booth Glen, J.).
This foreclosure action lay dormant for approximately twenty years until defendant brought the instant motion to dismiss pursuant to CPLR 3404 and 3216 and on the ground of plaintiffs' laches. Shortly thereafter, by a supplemental order dated May 18, 1994, the court lifted a stay imposed in 1974, which had been granted pending plaintiffs' compliance with EPTL 13-3.5 ( see, Desser v. Schatz, 182 A.D.2d 478).
The court properly determined that Schatz could not invoke CPLR 3404 under the subject circumstances since the case had not been marked off the court's trial calendar. Furthermore, the court properly found that it was impossible to determine whether Schatz had joined issue, a condition precedent to his making a ninety-day demand under CPLR 3216 (CPLR 3216 [b]). Finally, it was not an improvident exercise of discretion under the circumstances for the IAS Court to defer making a determination whether this action should be dismissed on the ground of plaintiffs' laches and in denying this branch of the motion without prejudice to renewal.
Concur — Rosenberger, J.P., Ellerin, Kupferman, Tom and Mazzarelli, JJ.