Pirpinias v. Milonas

Appellate Division of the Supreme Court of New York

Pirpinias v. Milonas

274 A.D.2d 383, 711 N.Y.S.2d 753, 2000 N.Y. App. Div. LEXIS 7559

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

DecidedJuly 3, 2000

StatusPublished

Cited by2 cases

This text of 274 A.D.2d 383 (Pirpinias v. Milonas) 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.

Bluebook

Pirpinias v. Milonas, 274 A.D.2d 383, 711 N.Y.S.2d 753, 2000 N.Y. App. Div. LEXIS 7559 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Schmidt, J.), dated October 1, 1999, which denied their motion to dismiss the complaint pursuant to CPLR 3216.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

A party served with a 90-day notice pursuant to CPLR 3216 must comply with the notice by filing a note of issue or by moving, before the expiration of the 90-day period, to either vacate the notice or extend the 90-day period (see, Allone v University Hosp., 249 AD2d 430; Hayden v Jones, 244 AD2d 316). The moving party must demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice and the [384]*384existence of a meritorious cause of action (see, Papadopoulas v R.B. Supply Corp., 152 AD2d 552). The plaintiffs failed to satisfy either requirement in this case. Indeed, the plaintiffs’ opposition to the motion to dismiss the complaint did not even address the merits of their claim.

We decline to reach the issue of whether the defendants complied with CPLR 3216 (b) (3), which is improperly raised for the first time on appeal (see, Murray v Palmer, 229 AD2d 377; Shelton v Shelton, 151 AD2d 659). Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Schmidt, J.), dated October 1, 1999, which denied their motion to dismiss the complaint pursuant to CPLR 3216.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

A party served with a 90-day notice pursuant to CPLR 3216 must comply with the notice by filing a note of issue or by moving, before the expiration of the 90-day period, to either vacate the notice or extend the 90-day period (see, Allone v University Hosp., 249 AD2d 430; Hayden v Jones, 244 AD2d 316). The moving party must demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice and the [384]*384existence of a meritorious cause of action (see, Papadopoulas v R.B. Supply Corp., 152 AD2d 552). The plaintiffs failed to satisfy either requirement in this case. Indeed, the plaintiffs’ opposition to the motion to dismiss the complaint did not even address the merits of their claim.

We decline to reach the issue of whether the defendants complied with CPLR 3216 (b) (3), which is improperly raised for the first time on appeal (see, Murray v Palmer, 229 AD2d 377; Shelton v Shelton, 151 AD2d 659). Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.

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274 A.D.2d 383, 711 N.Y.S.2d 753, 2000 N.Y. App. Div. LEXIS 7559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pirpinias-v-milonas-nyappdiv-2000.

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