Pinkoski v. Rochester City Court Records Department

Appellate Division of the Supreme Court of New York

Pinkoski v. Rochester City Court Records Department

190 A.D.2d 1055, 594 N.Y.S.2d 1011, 1993 N.Y. App. Div. LEXIS 1276

Appellate Division of the Supreme Court of the State of New York·Decided February 5, 1993·Published

Opinion

— Order unanimously reversed on the law with costs, motion granted and complaint dismissed. Memorandum: Defendant City of Rochester appeals from an order that denied its motion to dismiss pursuant to CPLR 3216 for failure to prosecute. In denying defendant’s motion, the court granted plaintiff three weeks within which to resume prosecution by filing a note of issue.

We conclude that the action should be dismissed. In response to defendant City’s 90-day demand to resume prosecution, plaintiff failed to file a note of issue or take any steps to indicate that he had any interest in resuming prosecution (see, Mason v Simmons, 139 AD2d 880, 881). It was therefore necessary for plaintiff, in order to avoid dismissal, to show [1056]*1056both a justifiable excuse for his delay in prosecuting the action and a good and meritorious cause of action (CPLR 3216 [e]; Azzoto v City of Syracuse; 176 AD2d 1197, lv denied 79 NY2d 752; Mason v Simmons, supra). Plaintiff failed to do either. (Appeal from Order of Supreme Court, Monroe County, Rosenbloom, J. — Dismiss Complaint.) Present — Denman, P. J., Boomer, Green, Balio and Davis, JJ.

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— Order unanimously reversed on the law with costs, motion granted and complaint dismissed. Memorandum: Defendant City of Rochester appeals from an order that denied its motion to dismiss pursuant to CPLR 3216 for failure to prosecute. In denying defendant’s motion, the court granted plaintiff three weeks within which to resume prosecution by filing a note of issue.

We conclude that the action should be dismissed. In response to defendant City’s 90-day demand to resume prosecution, plaintiff failed to file a note of issue or take any steps to indicate that he had any interest in resuming prosecution (see, Mason v Simmons, 139 AD2d 880, 881). It was therefore necessary for plaintiff, in order to avoid dismissal, to show [1056]*1056both a justifiable excuse for his delay in prosecuting the action and a good and meritorious cause of action (CPLR 3216 [e]; Azzoto v City of Syracuse; 176 AD2d 1197, lv denied 79 NY2d 752; Mason v Simmons, supra). Plaintiff failed to do either. (Appeal from Order of Supreme Court, Monroe County, Rosenbloom, J. — Dismiss Complaint.) Present — Denman, P. J., Boomer, Green, Balio and Davis, JJ.

Pinkoski v. Rochester City Court Records Department, 190 A.D.2d 1055, 594 N.Y.S.2d 1011, 1993 N.Y. App. Div. LEXIS 1276 (N.Y. Ct. App. 1993).

Pincite

190 A.D.2d 1055 (Pinkoski v. Rochester City Court Records Department) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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