Micalizzi v. Gomes

Appellate Division of the Supreme Court of New York

Micalizzi v. Gomes

239 A.D.2d 395, 657 N.Y.S.2d 201, 1997 N.Y. App. Div. LEXIS 5097

Appellate Division of the Supreme Court of the State of New York·Decided May 12, 1997·Published·Cited by 5 cases

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Fredman, J.), entered May 15, 1996, which granted the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

Ordered that the order is affirmed, with costs.

Having been served with a 90-day demand pursuant to CPLR 3216, it was incumbent upon the plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the demand or to extend the 90-day period (see, Turman v Amity OBG Assocs., 170 AD2d 668; Papadopoulas v R.B. Supply Corp., 152 AD2d 552). Having failed to do so, the plaintiff, to avoid the sanction of dismissal, was required to demonstrate a justifiable excuse for the delay in properly responding to the demand and that he had a meritorious cause of action (see, Papadopoulas v R.B. Supply Corp., supra). The plaintiff has failed to satisfy either of these requirements. Miller, J. P., Thompson, Joy and Luciano, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Fredman, J.), entered May 15, 1996, which granted the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

Ordered that the order is affirmed, with costs.

Having been served with a 90-day demand pursuant to CPLR 3216, it was incumbent upon the plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the demand or to extend the 90-day period (see, Turman v Amity OBG Assocs., 170 AD2d 668; Papadopoulas v R.B. Supply Corp., 152 AD2d 552). Having failed to do so, the plaintiff, to avoid the sanction of dismissal, was required to demonstrate a justifiable excuse for the delay in properly responding to the demand and that he had a meritorious cause of action (see, Papadopoulas v R.B. Supply Corp., supra). The plaintiff has failed to satisfy either of these requirements. Miller, J. P., Thompson, Joy and Luciano, JJ., concur.

Micalizzi v. Gomes, 239 A.D.2d 395, 657 N.Y.S.2d 201, 1997 N.Y. App. Div. LEXIS 5097 (N.Y. Ct. App. 1997).

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239 A.D.2d 395 (Micalizzi v. Gomes) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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