Atlantic J & S Spiritis Corp. v. Noll's Boat Yard, Inc.

290 A.D.2d 525, 736 N.Y.S.2d 613, 2002 N.Y. App. Div. LEXIS 1048

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 2002
• Status: Published

Opinion

In an action, inter alia, to set aside certain real property transfers as fraudulent conveyances, the defendants Noll’s Boat Yard, Inc., Anthony Pellerito, Alice Pellerito, and Maria Rossiello appeal, and the defendants Henry Noll and Claire Noll separately appeal, from an order of the Supreme Court, Nassau County (Winick, J.), entered February 15, 2001, which denied their respective motions pursuant to CPLR 3216 to dismiss the complaint and strike the plaintiffs’ note of issue.

Ordered that the order is affirmed, with one bill of costs.

The Supreme Court issued an order which constituted a valid 90-day notice pursuant to CPLR 3216 (see, Seletsky v St. Francis Hosp., 263 AD2d 452). Upon the plaintiffs’ failure to timely comply with the order or to seek an extension of time within which to comply, the appellants moved to dismiss the complaint and to strike the belatedly-filed note of issue. The plaintiffs were required to demonstrate a reasonable excuse for their noncompliance and a meritorious cause of action (see, Seletsky v St. Francis Hosp., supra).

The Supreme Court providently exercised its discretion in denying the appellants’ motions. The court has the discretion to excuse a default resulting from law office failure in appropriate circumstances, particularly where, as here, the plaintiffs demonstrated a meritorious cause of action and that the delay in filing the note of issue did not prejudice the appellants (see, Velasquez v Newell, 233 AD2d 390; Shopwell, Inc. v Hartz Mtn. Indus., 198 AD2d 158; Salch v Paratore, 100 AD2d 845). S. Miller, J.P., O’Brien, McGinity, Schmidt and Townes, JJ., concur.