Otero v. City of New York

Appellate Division of the Supreme Court of New York

Otero v. City of New York

202 A.D.2d 332, 609 N.Y.S.2d 13, 1994 N.Y. App. Div. LEXIS 2777

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

DecidedMarch 24, 1994

StatusPublished

This text of 202 A.D.2d 332 (Otero v. City of New York) 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.

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Otero v. City of New York, 202 A.D.2d 332, 609 N.Y.S.2d 13, 1994 N.Y. App. Div. LEXIS 2777 (N.Y. Ct. App. 1994).

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Opinion

—Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered December 29, 1992, which denied plaintiffs motion to vacate a prior order of the same court and Justice dismissing plaintiff’s complaint for failure to prosecute, unanimously affirmed, without costs.

In the absence of an affidavit of merit, the IAS Court properly denied plaintiffs motion to vacate the prior order dismissing her complaint (Palmieri v Romat Realty Corp., 45 AD2d 948). In view of plaintiffs attorney’s actual knowledge of the vacatur of her note of issue prior to service of the 90 day notice, we reject plaintiff’s contention that the prior order was obtained through "extrinsic fraud”, thus obviating the need for an affidavit of merit. We have considered plaintiffs other arguments and find them to be without merit. Concur— Murphy, P. J., Sullivan, Rosenberger, Asch and Tom, JJ.

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—Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered December 29, 1992, which denied plaintiffs motion to vacate a prior order of the same court and Justice dismissing plaintiff’s complaint for failure to prosecute, unanimously affirmed, without costs.

In the absence of an affidavit of merit, the IAS Court properly denied plaintiffs motion to vacate the prior order dismissing her complaint (Palmieri v Romat Realty Corp., 45 AD2d 948). In view of plaintiffs attorney’s actual knowledge of the vacatur of her note of issue prior to service of the 90 day notice, we reject plaintiff’s contention that the prior order was obtained through "extrinsic fraud”, thus obviating the need for an affidavit of merit. We have considered plaintiffs other arguments and find them to be without merit. Concur— Murphy, P. J., Sullivan, Rosenberger, Asch and Tom, JJ.

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Bluebook (online)

202 A.D.2d 332, 609 N.Y.S.2d 13, 1994 N.Y. App. Div. LEXIS 2777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otero-v-city-of-new-york-nyappdiv-1994.

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