Goldstein v. Winard

Appellate Division of the Supreme Court of New York

Goldstein v. Winard

51 A.D.3d 569, 858 N.Y.S.2d 162

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

DecidedMay 27, 2008

StatusPublished

This text of 51 A.D.3d 569 (Goldstein v. Winard) 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

Goldstein v. Winard, 51 A.D.3d 569, 858 N.Y.S.2d 162 (N.Y. Ct. App. 2008).

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Opinion

[570]*570Judgment, Supreme Court, New York County (Rolando T. Acosta, J.), entered July 31, 2007, dismissing the complaint as against defendant Winard, unanimously affirmed, without costs. Appeals from orders, same court and Justice, entered April 13, 2007, and October 2, 2007, unanimously dismissed, without costs.

The action was properly dismissed for failure to prosecute, plaintiffs having failed to show a reasonable excuse for not having served and filed a note of issue within 90 days of defendant Winard’s CPLR 3216 demand, or a reasonable excuse for the extensive past delay in prosecuting this action (Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]). Since Winard’s service of the 90-day demand in September 2006 for resumption of prosecution (CPLR 3216 [b] [3]), plaintiff Ulmer’s attorney has sought to withdraw from the case, and neither plaintiff has taken any steps to resume prosecution or file a note of issue. None of the papers submitted in response to Winard’s motion offered an adequate explanation for the more than 15 years of delay in prosecuting this action. Concur—Andrias, J.P., Saxe, Sweeny, Moskowitz and DeGrasse, JJ.

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[570]*570Judgment, Supreme Court, New York County (Rolando T. Acosta, J.), entered July 31, 2007, dismissing the complaint as against defendant Winard, unanimously affirmed, without costs. Appeals from orders, same court and Justice, entered April 13, 2007, and October 2, 2007, unanimously dismissed, without costs.

The action was properly dismissed for failure to prosecute, plaintiffs having failed to show a reasonable excuse for not having served and filed a note of issue within 90 days of defendant Winard’s CPLR 3216 demand, or a reasonable excuse for the extensive past delay in prosecuting this action (Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]). Since Winard’s service of the 90-day demand in September 2006 for resumption of prosecution (CPLR 3216 [b] [3]), plaintiff Ulmer’s attorney has sought to withdraw from the case, and neither plaintiff has taken any steps to resume prosecution or file a note of issue. None of the papers submitted in response to Winard’s motion offered an adequate explanation for the more than 15 years of delay in prosecuting this action. Concur—Andrias, J.P., Saxe, Sweeny, Moskowitz and DeGrasse, JJ.

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Bluebook (online)

51 A.D.3d 569, 858 N.Y.S.2d 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldstein-v-winard-nyappdiv-2008.

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