Carven Associates v. American Home Assurance Corp.

Order, Supreme Court, New York County (Myriam J. Altman, J.), entered January 24, 1992, granting defendant’s motion and third-party defendants’ cross motions to dismiss plaintiffs’ complaint, reversed, on the law, without costs, the complaint is reinstated, and the case is remanded for further proceedings.

It was error for the IAS Court to grant the motion to dismiss the complaint on the ground of neglect to prosecute, based upon newly discovered evidence. Evidence is defined as that which can be proffered at trial (Fisch, New York Evidence § 1). There is no way that the comments of the Second…