Florestal v. Little Flower Children's Services

9 A.D.3d 348, 778 N.Y.S.2d 913, 2004 N.Y. App. Div. LEXIS 9362

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Catterson, J.), dated September 9, 2003, which granted the plaintiffs motion to vacate a 90-day demand and to extend the time to complete discovery and denied its cross motion pursuant to CPLR 3216 to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the complaint is dismissed.

The Supreme Court improvidently exercised its discretion in granting the plaintiffs motion to vacate the 90-day demand (see CPLR 3216) and to extend the time to complete discovery, given the lengthy delay in prosecuting this action and the inadequate excuse for the delay. Accordingly, the defendant’s cross motion pursuant to CPLR 3216 to dismiss the complaint should have been granted (see Palermo v County of Nassau, 266 AD2d 365, 366 [1999]; see also Acevedo v DePena, 6 AD3d 636 [2004]; Dhaliwal v Long Boat Taxi, 305 AD2d 449 [2003]; Carota v Massapequa Union Free School Dist., 272 AD2d 428 [2000]; Guang Jing Chen v Goldstein, 246 AD2d 407 [1998]). Florio, J.P., Krausman, Townes, Mastro and Fisher, JJ., concur.