56 N.Y.2d 785 (1982)
James R. Gohery, Appellant,
James R. Gohery, Appellant,
v.
Spartan Concrete Corp., Defendant, and Tilles Investment Corporation et al., Respondents. (And a Third-Party Action.)
Court of Appeals of the State of New York.
Decided May 20, 1982.Robert J. Poulson, Jr., and Diane Dubiac for appellant.
Nathan Cyperstein and Alvin P. Bluthman for Tilles Investment Corporation, respondent.
Robert F. Saunderson for Peter Scalamandre & Sons, Inc., respondent.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in granting defendants-respondents' motions to dismiss the complaint pursuant to CPLR 3216 (see Levin v 40 Realty, 80 AD2d 515, affd 54 N.Y.2d 624; Sortino v Fisher, 20 AD2d 25).