Gavillan v. City of New York

Appellate Division of the Supreme Court of New York

Gavillan v. City of New York

11 A.D.3d 217, 782 N.Y.S.2d 253, 2004 N.Y. App. Div. LEXIS 11512

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 5, 2004

StatusPublished

Cited by3 cases

This text of 11 A.D.3d 217 (Gavillan v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gavillan v. City of New York, 11 A.D.3d 217, 782 N.Y.S.2d 253, 2004 N.Y. App. Div. LEXIS 11512 (N.Y. Ct. App. 2004).

Pincite

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about September 6, 2002, which granted the Pena defendants’ motion to dismiss the complaint for failure to prosecute, and order, same court and Justice, entered November 21, 2003, which, to the extent appealable, denied plaintiffs motion for renewal of her response to the prior motion, unanimously affirmed, without costs.

On the initial motion, plaintiff failed to show a meritorious cause of action. She also failed to offer a reasonable excuse for not serving and filing a note of issue, for not responding to the Pena defendants’ 90-day demand for a note of issue, and for not explaining the delay of more than four years in prosecuting this action (CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Berman v Harold Nye Ford, 280 AD2d 308 [2001]).

The motion court did not improvidently exercise its discretion in denying plaintiffs motion to renew, where the alleged excuse for the failure to comply with the 90-day demand (namely, eviction proceedings pending against plaintiffs counsel) was not made known to the court on the first motion. In any event, this would not have explained the pattern of delay over the course of the litigation.

We have considered plaintiffs other arguments and find them unavailing. Concur—Tom, J.P., Williams, Friedman, Marlow and Sweeny, JJ.

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Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about September 6, 2002, which granted the Pena defendants’ motion to dismiss the complaint for failure to prosecute, and order, same court and Justice, entered November 21, 2003, which, to the extent appealable, denied plaintiffs motion for renewal of her response to the prior motion, unanimously affirmed, without costs.

On the initial motion, plaintiff failed to show a meritorious cause of action. She also failed to offer a reasonable excuse for not serving and filing a note of issue, for not responding to the Pena defendants’ 90-day demand for a note of issue, and for not explaining the delay of more than four years in prosecuting this action (CPLR 3216; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Berman v Harold Nye Ford, 280 AD2d 308 [2001]).

The motion court did not improvidently exercise its discretion in denying plaintiffs motion to renew, where the alleged excuse for the failure to comply with the 90-day demand (namely, eviction proceedings pending against plaintiffs counsel) was not made known to the court on the first motion. In any event, this would not have explained the pattern of delay over the course of the litigation.

We have considered plaintiffs other arguments and find them unavailing. Concur—Tom, J.P., Williams, Friedman, Marlow and Sweeny, JJ.

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Bluebook (online)

11 A.D.3d 217, 782 N.Y.S.2d 253, 2004 N.Y. App. Div. LEXIS 11512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gavillan-v-city-of-new-york-nyappdiv-2004.

Opinion

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