Partnership 92 West v. Dobrolowicz

Suarez, P.J. (dissenting).

The issue on this appeal is whether a party who, in a written stipulation, reserves her rights with respect to counterclaims should be allowed to pursue the counterclaims where the counterclaims have never been on the calendar, where the counterclaims have not been litigated on the merits and where the adversary has served no notice to resume prosecution as required by CPLR 3216 (b) (3). I find that she should. There is no legal basis for the denial of the motion of Eva Bogushawa Dobrolowicz to place her counterclaims on the calendar for trial. (See Trustees of…