Berman v. Harold Nye Ford, Inc.

280 A.D.2d 308, 719 N.Y.S.2d 655, 2001 N.Y. App. Div. LEXIS 1373

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered October 18, 1999, which, in an action for personal injuries allegedly sustained by plaintiff when she was struck by a vehicle allegedly leased by defendant-respondent to its codefendant, denied plaintiff’s motion for leave to file a note of issue, and granted defendant-respondent’s cross motion to dismiss the complaint for failure to prosecute, unanimously affirmed, without costs.

The action was properly dismissed pursuant to CPLR 3216, plaintiff having failed to show a meritorious cause of action, a reasonable excuse for not having served and filed á note of issue within 90 days of defendant’s CPLR 3216 demand, or a reasonable excuse for the extensive past delay in this action, commenced in 1991, in which a May 1993 preliminary conference order directed the filing of a note of issue by May 1994 (see, Baczkowski v Collins Constr. Co., 89 NY2d 499, 503). Plaintiff offers no excuse for not having obtained an affidavit from the “police blotter witness” who witnessed the accident and drove her to the hospital, and on whose testimony at trial her case is dependent. Nor does plaintiff offer reasonable excuses for her six-year delay in signing the medical authorizations directed in the preliminary conference order, during most of which period there was otherwise no activity whatsoever, and the 78-day delay between expiration of the 90-day notice and her making of the instant motion seeking, in effect, a nunc pro tunc extension of the 90-day period and a further opportunity to complete the disclosure directed in the preliminary conference order. Concur — Rosenberger, J. P., Mazzarelli, Wallach, Saxe and Buckley, JJ.