Aiken v. Dawson

• Decision Date: 11 July 2013
• Docket Number: MOTION SEQ. No. 001,002,INDEX No. 102302/11
• Parties: MAI AIKEN, Plaintiff, v. JOAN O. DAWSON, PAUL DAWSON and TANDRA DAWSON, Defendants.
• Court: New York Supreme Court

2013 NY Slip Op 31612

MAI AIKEN, Plaintiff,
v.
JOAN O. DAWSON, PAUL DAWSON and TANDRA DAWSON, Defendants.

INDEX No. 102302/11
MOTION SEQ. No. 001,002

SUPREME COURT OF THE STATE OF NEW YORK— NEW YORK COUNTY PART 58

FILED: July 22, 2013
Dated: July 11, 2013

PRESENT: DONNA M. MILLS
Justice

MOTION DATE_____
MOTION CAL No._____________________

The following papers, numbered 1 to ____ were read on this motion to STRIKE.

+-------------------------------------------------------------------------+
                ¦ ¦PAPERS NUMBERED¦
                +---------------------------------------------------------+---------------¦
                ¦Notice of Motion/Order to Show Cause-Affidavits- Exhibits¦1, 4 ¦
                +---------------------------------------------------------+---------------¦
                ¦Answering Affidavits- Exhibits ¦2, 5 ¦
                +---------------------------------------------------------+---------------¦
                ¦Replying Affidavits ¦7 ¦
                +-------------------------------------------------------------------------+
                

CROSS-MOTION: _____ YES √ NO

Motion sequence numbers 001 and 002 are consolidated for decision and are decided as follows:

In motion sequence number 001, defendants seek an order pursuant to CPLR § 3216(a) dismissing plaintiff's complaint, as plaintiff allegedly failed to timely respond to a duly served Ninety Day Notice. In sequence number 002, defendants seek an order pursuant to 22 NYCRR 202.21(e) striking the Note of Issue on the ground that the Certificate of Readiness is incorrect.

This action arises out of an alleged trip and fall occurring on October 19, 2010. Plaintiff claims to have fell due to an uneven sidewalk slab. Defendants are the owners

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and managers of the adjacent building where plaintiff allegedly fell. Plaintiff commenced this action by filing a Summons and Complaint with the Clerk of this Court on or about February 24, 2011. Issue was joined by the defendants by service of a Verified Answer on March 30, 2011. Served with defendants Answer on March 30, 2011 were various discovery demands to include but not limited to demand for Bill of Particulars.

After not receiving a response to the various discovery demands, defendants, on or around November 19, 2012, filed a ninety day notice on plaintiff demanding pursuant to CPLR § 3216 that the prosecution of this matter resume and that the Note of Issue be served within 90 days after receipt of said demand. Again having not received a response from plaintiff, defendants filed the motion to strike the complaint on April 2, 2013.

Subsequent to the ninety day notice of November 19,...