MacLeod v. Nolte

106 A.D.2d 860, 483 N.Y.S.2d 142, 1984 N.Y. App. Div. LEXIS 21762

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1984
• Status: Published

Opinion

Order unanimously reversed, on the law, without costs, motion granted and complaint dismissed. Memorandum: After defendants duly served a demand upon plaintiffs to file a note of issue within 90 days pursuant to CPLR 3216 (subd [b], par [3]), plaintiffs waited for almost six months before complying with the demand. In opposition to defendants’ motion to dismiss the complaint, only an attorney’s affidavit was offered alleging in conclusory fashion that plaintiffs have a meritorious cause of action and that the excuse for failing to comply with the demand was defendants’ failure to complete discovery.

CPLR 3216 requires that an action be dismissed unless plaintiff demonstrates a meritorious cause of action and a justifiable excuse for failure to comply with the demand. Here, plaintiffs have failed on both counts. They have made no showing, in evidentiary form, that they have a valid cause of action (Riley v Makowski, 92 AD2d 664). Nor is defendants’ failure to exercise their right to discovery an adequate excuse for plaintiffs’ failure to file the note of issue after demand. A defendant who serves a CPLR 3216 demand is clearly indicating that he does not seek further discovery. Absent a showing of merit and reasonable excuse for the delay in complying with the demand, it was an abuse of discretion for Special Term to deny the motion (Abrams, Kochman, Rathskeller v Esquire Motels, 79 AD2d 879). (Appeal from order of Supreme Court, Chautauqua County, Marshall, J. — dismiss complaint.) Present — Hancock, Jr., J. P., Doerr, Denman, Boomer and O’Donnell, JJ.