Prescott v. Kramer Chemicals, Inc. , 750 N.Y.S.2d 895 ( 2002 )

—In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff, Kramer Chemicals, Inc., appeals, and the third-party defendant, United Resin Corporation, separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated February 2, 2001, as granted the plaintiffs’ motion, inter alia, to vacate a judgment of the same court, entered August 9, 1999, dismissing the complaint on the plaintiffs’ failure to oppose the cross motion of the defendant third-party plaintiff, in which the third-party defendant joined, among other things, pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute, to the extent of vacating the judgment.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion to vacate the judgment entered on their failure to oppose the cross motion of the defendant third-party plaintiff, Kramer Chemicals, Inc., in which the third-party defendant joined, inter alia, pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute this pre-note of issue matter (see Murray v Smith Corp., 296 AD2d 445, 446; Wasilewicz v Village of Monroe Police Dept., 288 AD2d 377, 378).

The appellants’ remaining contentions are either without merit or not properly raised on this appeal. Santucci, J.P., Krausman, Creme and Mastro, JJ., concur.