CARVEN ASSOCIATES v. AMERICAN HOME ASSURANCE CORP., 84 N.Y.2d 927 (1994)

644 N.E.2d 1368, 620 N.Y.S.2d 812

CARVEN ASSOCIATES, Also Known as CARVAN ASSOCIATES, et al., Respondents, v. AMERICAN HOME ASSURANCE CORP., Defendant and Third-Party Plaintiff-Appellant. DELRO INDUSTRIES, INC., et al., Third-Party Defendants-Appellants, et al., Third-Party Defendants.

Court of Appeals of the State of New York.Argued October 27, 1994
Decided November 29, 1994

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Myriam J. Altman, J.

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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

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Mound, Cotton Wollan, New York City (Andrew C. Jacobson, Diane P. Simon and David I. Schonbrun of counsel), for defendant and third-party plaintiff-appellant.

Herzfeld Rubin, P.C., New York City (David B. Hamm, Herbert Rubin, Ellin Mulholland and Linda M. Brown of counsel), for Delro Industries, Inc., third-party defendant-appellant.

Spiegel, Pergament Brown, Poughkeepsie (Donald D. Brown, Jr., and Cynthia K. Fichera of counsel), for Litton Systems, Inc., third-party defendant-appellant.

Bartlett, McDonough, Bastone Monaghan, White Plains

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(Edward J. Guardaro, Jr., of counsel), for Northberry Concrete Corp., third-party defendant-appellant.

Wilson, Bave, Conboy Bave, P.C., White Plains (John P. Perfetti of counsel), for Charles V. Castaldo Construction Corp., third-party defendant-appellant.

Weg Myers, P.C., New York City (Dennis T. D’Antonio, Myrle L. Davis and Joshua L. Mallin of counsel), for respondents.

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 A.D.2d 369). A subsequent order of the Appellate Division, Second Department (175 A.D.2d 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]).

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, LEVINE and CIPARICK concur in memorandum; Judge SMITH taking no part.

Order reversed, etc.