Karter v. Young

Appellate Division of the Supreme Court of New York

Karter v. Young

117 A.D.2d 1003, 499 N.Y.S.2d 547, 1986 N.Y. App. Div. LEXIS 63657

Appellate Division of the Supreme Court of the State of New York·Decided February 21, 1986·Published·Cited by 1 cases

Opinion

—Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Defendant’s motion to dismiss the complaint should have been granted. The affidavit of defense counsel in support of the motion established that a 90-day demand pursuant to CPLR 3216 had been served on plaintiffs’ counsel by certified mail and that plaintiffs had failed to file a note of issue within the statutory period. In opposing the motion plaintiffs merely stated that there had "been no unreasonable delay.” In order to defeat the motion plaintiffs were required to show "justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]). Inasmuch as they showed neither, the motion should have been granted (see, Sortino v Fisher, 20 AD2d 25). (Appeal from order of Supreme Court, Erie County, Sedita, J.—dismiss action.) Present—Denman, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.

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—Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Defendant’s motion to dismiss the complaint should have been granted. The affidavit of defense counsel in support of the motion established that a 90-day demand pursuant to CPLR 3216 had been served on plaintiffs’ counsel by certified mail and that plaintiffs had failed to file a note of issue within the statutory period. In opposing the motion plaintiffs merely stated that there had "been no unreasonable delay.” In order to defeat the motion plaintiffs were required to show "justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]). Inasmuch as they showed neither, the motion should have been granted (see, Sortino v Fisher, 20 AD2d 25). (Appeal from order of Supreme Court, Erie County, Sedita, J.—dismiss action.) Present—Denman, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.

Karter v. Young, 117 A.D.2d 1003, 499 N.Y.S.2d 547, 1986 N.Y. App. Div. LEXIS 63657 (N.Y. Ct. App. 1986).

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Opinion

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