Simmons v. Rockaway One Co.

Appellate Division of the Supreme Court of New York

Simmons v. Rockaway One Co.

250 A.D.2d 594, 672 N.Y.S.2d 750, 1998 N.Y. App. Div. LEXIS 4916

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

DecidedMay 4, 1998

StatusPublished

This text of 250 A.D.2d 594 (Simmons v. Rockaway One Co.) 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

Simmons v. Rockaway One Co., 250 A.D.2d 594, 672 N.Y.S.2d 750, 1998 N.Y. App. Div. LEXIS 4916 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of Supreme Court, Queéns County (Schmidt, J.), dated May 31, 1997, as denied their motion to dismiss the action pursuant to CPLR 3216 for failure to prosecute.

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

The defendants duly served on the plaintiff a demand pursuant to CPLR 3216 that she file a note of issue within 90 days or suffer the dismissal of her complaint (see, Baczkowski v Collins Constr. Co., 89 NY2d 499; Spierto v Pennisi, 223 AD2d 537; Gache v Incorporated Vil. of Freeport, 202 AD2d 470). Prior to the default date, the plaintiff failed either to file a note of issue, move to extend the time to file, or move to strike the defendants’ demand (see, Baczkowski v Collins Constr. Co., supra; Spierto v Pennisi, supra; Gache v Incorporated Vil. of Freeport, supra). Thus, in response to the defendants’ subsequent motion to dismiss, the plaintiff was required to demonstrate both a justifiable excuse for her delay and a meritorious cause of action (CPLR 3216 [e]; see, Baczkowski v Collins Constr. Co., supra; Spierto v Pennisi, supra; Gache v Incorporated Vil. of Freeport, supra). Because the plaintiff failed to do either, dismissal of her complaint is appropriate (see, Aalbue v Flaherty, 202 AD2d 381; Grovey v Gimbel Bros., 146 AD2d 742; Sortino v Fisher, 20 AD2d 25). Rosenblatt, J. P., Ritter, Krausman and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of Supreme Court, Queéns County (Schmidt, J.), dated May 31, 1997, as denied their motion to dismiss the action pursuant to CPLR 3216 for failure to prosecute.

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

The defendants duly served on the plaintiff a demand pursuant to CPLR 3216 that she file a note of issue within 90 days or suffer the dismissal of her complaint (see, Baczkowski v Collins Constr. Co., 89 NY2d 499; Spierto v Pennisi, 223 AD2d 537; Gache v Incorporated Vil. of Freeport, 202 AD2d 470). Prior to the default date, the plaintiff failed either to file a note of issue, move to extend the time to file, or move to strike the defendants’ demand (see, Baczkowski v Collins Constr. Co., supra; Spierto v Pennisi, supra; Gache v Incorporated Vil. of Freeport, supra). Thus, in response to the defendants’ subsequent motion to dismiss, the plaintiff was required to demonstrate both a justifiable excuse for her delay and a meritorious cause of action (CPLR 3216 [e]; see, Baczkowski v Collins Constr. Co., supra; Spierto v Pennisi, supra; Gache v Incorporated Vil. of Freeport, supra). Because the plaintiff failed to do either, dismissal of her complaint is appropriate (see, Aalbue v Flaherty, 202 AD2d 381; Grovey v Gimbel Bros., 146 AD2d 742; Sortino v Fisher, 20 AD2d 25). Rosenblatt, J. P., Ritter, Krausman and Goldstein, JJ., concur.

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Bluebook (online)

250 A.D.2d 594, 672 N.Y.S.2d 750, 1998 N.Y. App. Div. LEXIS 4916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-rockaway-one-co-nyappdiv-1998.

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