Adbul v. Lopez

• Decision Date: 06 November 2013
• Citation: 111 A.D.3d 587,2013 N.Y. Slip Op. 07141,974 N.Y.S.2d 120
• Parties: Rokeya Begum ADBUL, appellant, v. Ramon LOPEZ, defendant, Dikap L. Karmakar, respondent.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 587

974 N.Y.S.2d 120

2013 N.Y. Slip Op. 07141

Rokeya Begum ADBUL, appellant,

v. Ramon LOPEZ, defendant,Dikap L. Karmakar, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 6, 2013.

Dubow, Smith & Marothy, Bronx, N.Y. (Steven J. Mines of counsel), for appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Joel M. Simon of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated July 9, 2012, as granted that branch of the motion of the defendant Dikap L. Karmakar which was to dismiss the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Dikap L. Karmakar served the plaintiff with a 90–day demand pursuant to CPLR 3216. Thus, the plaintiff was required to serve and file a timely note of issue or to move, before the default date, either to vacate the demand or for an extension of time pursuant to CPLR 2004 ( see Colon v. Papatolis, 95 A.D.3d 1160, 943 N.Y.S.2d 914;Benitez v. Mutual of Am. Life Ins. Co., 24 A.D.3d 708, 808 N.Y.S.2d 698;Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213). The plaintiff did neither. To avoid dismissal of the action, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action ( seeCPLR 3216[e]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;Colon v. Papatolis, 95 A.D.3d 1160, 943 N.Y.S.2d 914;Picot v. City of New York, 50 A.D.3d 757, 758, 855 N.Y.S.2d 237;Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 442, 824 N.Y.S.2d 119). The plaintiff's unsubstantiated assertion that she entered into an arbitration agreement with Karmakar was insufficient to excuse the delay ( cf. Home Ins. Co. v. Meyers Parking Sys., 186 A.D.2d 497, 498, 589 N.Y.S.2d 322;National Agric. Commodities v. International Commodities Export Co., 108 A.D.2d 735, 736, 484 N.Y.S.2d 902). Furthermore, even though the parties engaged in negotiations regarding arbitration, the plaintiff failed to demonstrate that she was actively engaged in these negotiations for any significant amount of time prior to the default date or during the ensuing one-year period between the default date and Karmakar's motion to dismiss ( see Kourtsounis v. Chakrabarty, 254 A.D.2d 394, 395, 679 N.Y.S.2d 84;Prado v. Catholic Med. Ctr. of Brooklyn & Queens, 237 A.D.2d 341, 655 N.Y.S.2d 58;Sortino v. Fisher, 20 A.D.2d 25, 29, 245 N.Y.S.2d 186;cf. Katina, Inc. v. Town of Hempstead, 13 A.D.3d 343, 344, 786 N.Y.S.2d 552;Scarlett v. McCarthy, 2 A.D.3d 623, 624, 768 N.Y.S.2d 342). In any event, the...