Johnson v. Avis Rent a Car Systems, Inc.

91 A.D.2d 626, 456 N.Y.S.2d 809, 1982 N.Y. App. Div. LEXIS 19479

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1982
• Status: Published

Opinion

— In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Nassau County (Christ, J.), dated June 7, 1982, which granted defendants’ motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. Order affirmed, with $50 costs and disbursements. Plaintiffs failed to comply with defendants’ demand that they resume prosecution of this action by serving and filing a note of issue within 90 days after receipt of their demand. At Special Term, plaintiffs’ attorney admitted that despite the alleged lack of co-operation of plaintiffs’ physician in providing a medical report, the attorney had told his secretary to file a note of issue but that she had failed to do so, misplacing the file instead. This is a classic case of “law office failure” which, as a matter of law, is not a defense to a motion to dismiss pursuant to CPLR 3216 (Gohery v Spartan Concrete Corp., 85 AD2d 678, affd 56 NY2d 785; Barasch v Micucci, 49 NY2d 594; Crucilla v Howe Richardson Scale Co., 80 AD2d 575). Accordingly, the complaint was properly dismissed. Gibbons, J. P., O’Connor, Rubin and Boyers, JJ., concur.