CPLR R. 5015 Relief from judgment or order
CPLR § 2005 Excusable delay or default
Davidson v Valentin, 2009 NY Slip Op 06500 (App. Div., 2nd, 2009)
On October 26, 2007, a stipulation was "so-ordered," in which the parties consented to the entry of a judgment in favor of the plaintiffs on their first cause of action, inter alia, to direct the defendants to repair or replace a retaining wall on the defendants' property in compliance with the terms of an access agreement executed by the parties on the same date. The stipulation provided that if the defendants failed to comply with the terms of the judgment, the parties would place the remaining causes of action on the trial calendar. After the defendants failed to timely comply with the terms of the judgment, the plaintiffs placed the remaining causes of action on the trial calendar. Thereafter, the defendants obtained multiple adjournments of the trial date in an effort to comply with the terms of the access agreement. When the defendants' attorney failed to appear for trial on the third adjourned date of January 28, 2008, the court held an inquest on the issue of damages and entered a judgment in favor of the plaintiffs on February 28, 2008. On April 23, 2008, the defendants moved to vacate the judgment.
To vacate their default in appearing at the trial, the defendants were required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015[a][1]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747). Although the court may, in its discretion, accept law office failure as a reasonable excuse (see CPLR 2005; Putney v Pearlman, 203 AD2d 333), "'a pattern of willful default and neglect' should not be excused" (Roussodimou v Zafiriadis, 238 AD2d 568, 569, quoting Gannon v Johnson Scale Co., 189 AD2d 1052, 1052). The statements by the defendants' attorney regarding his personal problems did [*2]not adequately explain the defendants' failure to comply with the time and terms of the court-ordered stipulation, judgment, and access agreement dated October 26, 2007, and to comply with those terms during the subsequent extensions of those deadlines, and defense counsel's failure to appear on the adjourned trial date even though he knew his attempts to further adjourn the trial had been unsuccessful (see Joseph v GMAC Leasing Corp., 44 AD3d 905; Wechsler v First Unum Life Ins. Co., 295 AD2d 340; Foster v Gherardi, 201 AD2d 701). Furthermore, the defendants failed to demonstrate that they have a meritorious defense (see Buchanan v Cardozo, 24 AD2d 620, 621, affd 16 NY2d 1029). Accordingly, the defendants' motion was properly denied.
The bold is mine.
CPLR R. 3216 Want of prosecution
(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed.
CPLR § 2004 Extensions of time generallyDavis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009)
An order entered November 7, 2007, which warned the plaintiff that the failure to serve and file a note of issue would result in dismissal of the action, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Huger v Cushman & Wakefield, Inc., 58 AD3d 682; Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Giannoccoli v One Cent Park W. Assocs., 15 AD3d 348; Betty v City of New York, 12 AD3d 472). Having received a 90-day notice, the plaintiff was required either to file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 (see Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Bokhari v Home Depot U.S.A., 4 AD3d 381; McKinney v Corby, 295 AD2d 580, 581). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.
To vacate the dismissal of an action pursuant to CPLR 3216, a plaintiff must demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see CPLR 3216[e]; Felix v County of Nassau, 52 AD3d 653; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). Here, the plaintiff failed to submit any expert medical opinion evidence to demonstrate the merit of his medical malpractice action (see Mosberg v Elahi, 80 NY2d 941, 942; Fiore v Galang, 64 NY2d 999, 1000-1001; Salch v Paratore, 60 NY2d 851, 852; Picot v City of New York, 50 AD3d 757; Burke v Klein, 269 AD2d 348, 348-349; Abelard [*2]v Interfaith Med. Ctr., 202 AD2d 615, 616; Feinblum v Dybner, 197 AD2d 560). Accordingly, that branch of his motion which was, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 should have been denied.
Strange. Consider CPLR R. 3216(b)(3). Specifically, the "registered or certified" mail part.
Again, the bold is mine.
