Murphy v. Moeller , 635 N.Y.S.2d 528 ( 1995 )

—In a shareholders’ derivative action, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Nicolai, J.), entered July 1, 1994, which (1) denied their motion to compel the depositions of the defendant Karl Moeller and the nonparty Mary Moeller, as an officer of the defendant Excel Interior Systems, Inc., and (2) granted the cross motion of the defendants Karl Moeller and Excel Acoustics, Inc., to dismiss the complaint insofar as asserted against them on the ground of abandonment.

Ordered that the order is reversed, with costs, the cross motion of the defendants Karl Moeller and Excel Acoustics, Inc., to dismiss the complaint insofar as asserted against them is denied, the complaint insofar as asserted against them is reinstated, and the plaintiffs’ motion to compel the defendant Karl Moeller and the nonparty Mary Moeller, as an officer of the defendant Excel Interior Systems, Inc., to appear for depositions is granted; and it is further,

Ordered that the depositions shall be conducted at a time and place to be set in a written notice of at least 10 days, or at such time and place as the parties may agree.

In dismissing the instant complaint insofar as it is asserted against the defendants Karl Moeller and Excel Acoustics, Inc. (hereinafter Acoustics), the Supreme Court relied on a letter from the plaintiffs’ former attorney to the Supreme Court, dated June 7, 1991. However, in that letter the plaintiffs’ former attorney merely intended to discontinue the first of two actions involving the parties, and did not intend to discontinue the "second suit” involving the parties, i.e., the instant action, commenced under Index No. 2996/89. Accordingly, the Supreme Court erred in dismissing the instant action on the ground that it had been abandoned (see, Matter of Horton, 51 AD2d 856). The defendants’ reliance on CPLR 34-04 is without merit (see, Davila v Galarza, 221 AD2d 308; Beltrani v Mirabile, 141 AD2d 688). Accordingly, the complaint must be reinstated against the defendants Karl Moeller and Acoustics, and Karl Moeller and Mary Moeller are directed to appear for depositions. Balletta, J. P., Thompson, Joy and Goldstein, JJ., concur.