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JOHNSON v. MINSKOFF & SONS

287 A.D.2d 233 (2001)

735 N.Y.S.2d 503

ELAINE JOHNSON et al., Appellants, v. SAM MINSKOFF & SONS, INC., et al., Respondents.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 20, 2001.

Attorney(s) appearing for the Case

Lynn R. Kotler of counsel (Ruth M. Pollack on the brief; Pollack & Kotler, attorneys), for appellants.

Courtney M. Robbins of counsel (David H. Motola on the brief; Motola Klar Dinowitz & Carfora, LLP, attorneys), for International Service Systems, Inc., respondent.

Kurt E. Lundgren of counsel (La Sorsa & Beneventano, attorneys), for the remaining respondents.

MAZZARELLI, J. P., ANDRIAS, BUCKLEY and MARLOW, JJ., concur.

OPINION OF THE COURT

ELLERIN, J.

This appeal from the dismissal of a complaint pursuant to both CPLR 3404 and CPLR 3216 presents us with the occasion to consider the overlap between the two rules and to hold, in accord with the Appellate Division, Second Department (see, Lopez v Imperial Delivery Serv., 282 A.D.2d 190 [Feuerstein, J.], lv dismissed 96 N.Y.2d 937), that CPLR 3404 should not be applied to cases...

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