theCPLRblog

CPLR § 317: Court extends one-year limitation

CPLR § 317 Defense by person to whom summons not personally delivered

Stern v Warren George, Inc., 2011 NY Slip Op 01829 (App. Div. 2nd 2011)

The Supreme Court properly granted that branch of the respondent's motion which was pursuant to CPLR 317 to vacate the judgment entered upon its failure to appear or answer (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Reyes v DCH Mgt., Inc., 56 AD3d 644; Franklin v 172 Aububon Corp., 32 AD3d 454). The Supreme Court providently exercised its discretion in extending the one-year limitation period set forth in CPLR 317 in light of the potentially meritorious defense asserted by the respondent, the short delay after the limitation period expired in moving to vacate the judgment, and the public policy of determining actions on the merits (see CPLR 2004; Girardo v 99-27 Realty, LLC, 62 AD3d 659, 660; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d 629, 629-630; Allen v Preston, 123 AD2d 303, 303-304; Levine v Berlin, 46 AD2d 902, 903).

Order directing to file NOI the same as 90 day notice.

CPLR R. 3216 Want of prosecution

CPLR § 2004 Extensions of time generally

Fenner v County of Nassau, 2011 NY Slip Op 00178 (App. Div., 2nd 2011)

The certification order of the Supreme Court dated February 19, 2008, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Sicoli v Sasson, 76 AD3d 1002; Rodriguez v Five Towns Nissan, 69 AD3d 833; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue (see Sharpe v Osorio, 21 AD3d 467, 468; DeVore v Lederman, 14 AD3d 648, 649; Bokhari v Home Depot U.S.A., 4 AD3d 381, 382). In light of the plaintiff's failure to do either, the complaint was properly dismissed pursuant to CPLR 3216 (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783).

To vacate the dismissal of the complaint, the plaintiff was required to demonstrate a justifiable excuse for his failure to comply with the certification order and the existence of a potentially meritorious cause of action (see CPLR 3216[e]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; Rodriguez v Five Towns Nissan, 69 AD3d at 834; Davis v Cardiovascular Consultants of Long Is., P.C., 65 AD3d 1076, 1077; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). [*2]

In support of his motion, the plaintiff failed to proffer any excuse for his failure to comply with the certification order. The excuse of law office failure proffered by the plaintiff's attorney for the first time in a reply affirmation was not properly before the Supreme Court (seeCPLR 2214; 47 Thames Realty, LLC v Robinson, 61 AD3d 923, 924; Murray v New York City Health & Hosps. Corp., 52 AD3d 792, 794; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 AD3d 552, 553). Moreover, the conclusory and unsubstantiated claim of law office failure did not rise to the level of a reasonable excuse (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 784; Matter of Bloom v Lubow, 45 AD3d 680; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830). Furthermore, the plaintiff's motion papers failed to establish the existence of a potentially meritorious cause of action (see Dixon v Village of Spring Val., 50 AD3d 943; Apostolakis v Centereach Fire Dist., 300 AD2d 516; Sandstrom v Rodriguez, 221 AD2d 513).

 

Same effect, but different cause. CPLR R. 3216

CPLR R. 3216 Want of prosecution

CPLR § 2004 Extensions of time generally

Sicoli v Sasson, 2010 NY Slip Op 06625 (App. Div., 2nd 2010)

The recertification order of the Supreme Court dated July 16, 2008, directing the plaintiffs to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiffs failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Rodriguez v Five Towns Nissan, 69 AD3d 833; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783; Sustad v Karagiannis, 305 AD2d 664). Having received a 90-day notice, the plaintiffs were 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 Bokhari v Home Depot U.S.A., 4 AD3d 381, 382; Apicella v Estate of Apicella, 305 AD2d 621; Aguilar v Knutson, 296 AD2d 562). The plaintiffs did neither.

To avoid the dismissal of the action, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply with the recertification order and the existence of a potentially meritorious cause of action (see Rodriguez v Five Towns Nissan, 69 AD3d 833; Bokhari[*2]v Home Depot U.S.A., 4 AD3d 381, 382; Sustad v Karagiannis, 305 AD2d 664). Even assuming that the plaintiffs provided a reasonable excuse for their default (see CPLR 2005; Giannoccoli v One Cent. Park W. Assoc., 15 AD3d 348, 349; Betty v City of New York, 12 AD3d 472, 473-474; Association for Children with Learning Disabilities, Nassau Ch. v Zafar, 115 AD2d 580, 581), they failed to demonstrate a potentially meritorious cause of action. The affirmation of the plaintiffs' medical expert was insufficient to demonstrate that the causes of action alleging medical malpractice and lack of informed consent were potentially meritorious, since, inter alia, the medical expert failed to establish that his opinions were grounded in facts appearing in the hospital or medical records (see Bollino v Hitzig, 34 AD3d 711; Perez v Astoria Gen. Hosp., 260 AD2d 457, 458; Nepomniaschi v Goldstein, 182 AD2d 743, 744). Accordingly, the Supreme Court properly granted the motions, in effect, pursuant to CPLR 3216 to dismiss the action and properly denied the plaintiffs' cross motion to extend the time to serve and file a note of issue. 

The bold is mine.  Note that the Appellate Division says that it has the same effect as a "valid" 90-day notice.  Look at the requirements for a valid 90-day notice.  The recertification order is missing something.  Lisa Solomon and Marshall R. Isaacs wrote about this not too long ago.

 

Stipulations, Orders, and Defaults: CPLR R. 5015; CPLR § 2005; CPLR R. 3216; CPLR § 2004

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

(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:

(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 generally

Davis 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.

CPLR R. 3216(b)(3) & CPLR § 2004

CPLR R. 3216 Want of prosecution

(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:

(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 generally

Foley v West-herr Automotive Group, Inc., 2009 NY Slip Op 04808 (App. Div., 4th, 2009)

Supreme Court did not abuse its discretion in denying the motion of plaintiffs seeking permission to conduct further discovery and to vacate the court's demand to serve and file a note of issue pursuant to CPLR 3216 (b) (3) within 90 days. The court's demand provided that, in the event that plaintiffs failed to comply with the demand, the court upon its own motion would dismiss the complaint based on plaintiffs' unreasonable neglect in proceeding with the action. We note that plaintiffs moved within the 90-day period to vacate the demand and for an extension of time in which to complete discovery, thereby avoiding default with respect to the court's demand (see Walton v Clifton Springs Hosp. & Clinic, 255 AD2d 964, 965; Conway v Brooklyn Union Gas Co., 212 AD2d 497; cf. Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-504). We further note, however, that "[t]he motion requires the moving party to make a showing of need for the extension or good excuse for past delay" (Walton, 255 AD2d at 965 [internal quotation marks omitted]; see CPLR 2004; Cook v City of New York, 11 AD3d 424). We conclude that plaintiffs failed to demonstrate good cause for an extension of time in which to complete discovery, and they also failed to present a good excuse for the delay. Plaintiffs sought to excuse the prior delay by showing that the court's discovery deadline was ineffective, in view of the parties' continued discovery and the determination of an appeal after that deadline had expired. However, the record does not support the conclusion that the court's demand pursuant to CPLR 3216 (b) (3) was based upon plaintiffs' violation of its discovery deadline, as opposed to the failure of plaintiffs to move the case forward after the discovery deadline had expired. We therefore conclude that the court did not abuse its discretion in denying the motion. We note in any event that the order denying plaintiffs' motion further [*2]extended the time in which to file a note of issue and statement of readiness beyond the original 90-day deadline in the demand, and it specified that, in the event that plaintiffs did not comply with that later deadline, the court's motion to dismiss the complaint would be "heard" on such later date. Thus, the order in effect gave plaintiffs yet another extension of time in which to complete discovery.