Young v. Tompkins

Appellate Division of the Supreme Court of New York

Young v. Tompkins

124 A.D.2d 1061, 508 N.Y.S.2d 732, 1986 N.Y. App. Div. LEXIS 62422

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

DecidedNovember 10, 1986

StatusPublished

Cited by1 cases

This text of 124 A.D.2d 1061 (Young v. Tompkins) 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

Young v. Tompkins, 124 A.D.2d 1061, 508 N.Y.S.2d 732, 1986 N.Y. App. Div. LEXIS 62422 (N.Y. Ct. App. 1986).

Pincite

Opinion

Memorandum: It was an abuse of discretion for the court to excuse plaintiff’s failure to comply with defendant’s demand to file the note of issue (CPLR 3216). To defeat the motion, a party must show a "justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]). Plaintiff failed to submit an affidavit of merits and counsel’s inability to locate his client for some two years does not constitute a justifiable excuse for the delay (Highlands Ins. Co. v Maddena Constr. Co., 109 AD2d 1071; see also, Abrams, Kochman, Rathskeller v Esquire Motels, 79 AD2d 879). Under these circumstances, the motion to dismiss should have been granted (Salch v Paratore, 60 NY2d 851; Walker v Town of Lockport, 109 AD2d 1102, affd 65 NY2d 840). (Appeal from order of Supreme Court, Erie County, Rath, J. — dismiss complaint.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.

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Memorandum: It was an abuse of discretion for the court to excuse plaintiff’s failure to comply with defendant’s demand to file the note of issue (CPLR 3216). To defeat the motion, a party must show a "justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]). Plaintiff failed to submit an affidavit of merits and counsel’s inability to locate his client for some two years does not constitute a justifiable excuse for the delay (Highlands Ins. Co. v Maddena Constr. Co., 109 AD2d 1071; see also, Abrams, Kochman, Rathskeller v Esquire Motels, 79 AD2d 879). Under these circumstances, the motion to dismiss should have been granted (Salch v Paratore, 60 NY2d 851; Walker v Town of Lockport, 109 AD2d 1102, affd 65 NY2d 840). (Appeal from order of Supreme Court, Erie County, Rath, J. — dismiss complaint.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.

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Bluebook (online)

124 A.D.2d 1061, 508 N.Y.S.2d 732, 1986 N.Y. App. Div. LEXIS 62422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-tompkins-nyappdiv-1986.

Opinion

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