Timko v. Loreto

Appellate Division of the Supreme Court of New York

Timko v. Loreto

263 A.D.2d 480, 693 N.Y.S.2d 202, 1999 N.Y. App. Div. LEXIS 7878

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

DecidedJuly 12, 1999

StatusPublished

Cited by2 cases

This text of 263 A.D.2d 480 (Timko v. Loreto) 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

Timko v. Loreto, 263 A.D.2d 480, 693 N.Y.S.2d 202, 1999 N.Y. App. Div. LEXIS 7878 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In an action to recover damages for dental malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated July 2, 1998, as denied his motion to dismiss the complaint 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.

Having been served with a 90-day notice pursuant to CPLR 3216, it was incumbent upon the plaintiff to comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the notice or extend the 90-day period (see, Papadopoulas v R.B. Supply Corp., 152 AD2d 552). The plaintiff failed to do so. Accordingly, in order to avoid the sanction of dismissal, she was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and that she had a meritorious cause of action (Allone v University Hosp., 249 AD2d 430, 432; Spierto v Pennisi, 223 AD2d 537). The plaintiff failed to meet this burden.

In light of our determination, we need not address the appellant’s remaining contention. Ritter, J. P., Altman, Krausman and Florio, JJ., concur.

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—In an action to recover damages for dental malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated July 2, 1998, as denied his motion to dismiss the complaint 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.

Having been served with a 90-day notice pursuant to CPLR 3216, it was incumbent upon the plaintiff to comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the notice or extend the 90-day period (see, Papadopoulas v R.B. Supply Corp., 152 AD2d 552). The plaintiff failed to do so. Accordingly, in order to avoid the sanction of dismissal, she was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and that she had a meritorious cause of action (Allone v University Hosp., 249 AD2d 430, 432; Spierto v Pennisi, 223 AD2d 537). The plaintiff failed to meet this burden.

In light of our determination, we need not address the appellant’s remaining contention. Ritter, J. P., Altman, Krausman and Florio, JJ., concur.

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Bluebook (online)

263 A.D.2d 480, 693 N.Y.S.2d 202, 1999 N.Y. App. Div. LEXIS 7878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timko-v-loreto-nyappdiv-1999.

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