Scoglio v. Scoglio

In an action, inter alia, to recover damages for conversion, fraud, and *521embezzlement, the defendant John Scoglio appeals from so much of an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated August 28, 1997, as denied the defendants’ motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute, or for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute because discovery was not complete. Moreover, the plaintiffs correctly contend that they had a justifiable excuse for their failure to file a note of issue, because discovery was not complete (see, Markarian v Hundert, 204 AD2d 697; Sortino v Fisher, 20 AD2d 25). Further, since the defendant John Scoglio failed to sufficiently demonstrate his right to judgment as a matter of law, the Supreme Court properly denied that branch of the motion which was for summary judgment dismissing the complaint (see, Zuckerman v City of New York, 49 NY2d 557). Bracken, J. P., Thompson, Sullivan and Pizzuto, JJ., concur.