Aquilino v. Adirondack Transit Lines, Inc.
| Decision Date | 23 November 1983 |
| Citation | 97 A.D.2d 929,470 N.Y.S.2d 723 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Ben P. AQUILINO, Appellant, v. ADIRONDACK TRANSIT LINES, INC., et al., Respondents. |
Alfred Hafke, New Paltz, for appellant.
Rider, Drake, Sommers & Loeb, P.C., Newburgh (Joseph A. Catania, Jr., of counsel), for respondents.
Before SWEENEY, J.P., and MIKOLL, YESAWICH, WEISS and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, entered March 16, 1983 in Ulster County, which granted defendants' motion to dismiss the action for failure to prosecute.
In this personal injury action arising out of an auto accident, issue was joined in November of 1979. Following defendants' motion to preclude, for discovery, and for authorization to obtain medical reports, plaintiff was served on August 6, 1982 with a CPLR 3216 90-day demand to file a note of issue. Special Term granted defendants' motion to dismiss made four months later, giving rise to this appeal.
The sanction of dismissal will be avoided only upon demonstration of a justifiable excuse and a good and meritorious cause of action (Riley v. Makowski, 92 A.D.2d 664, 460 N.Y.S.2d 158; Steiner v. East Ramapo Cent. School Dist., 88 A.D.2d 594, 595, 449 N.Y.S.2d 778; Salerno v. Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Center, 88 A.D.2d 637, 638, 450 N.Y.S.2d 227). Here, plaintiff's excuse is that he was unable to depose one of the defendants (both the codefendant and plaintiff had already been deposed) within the 90-day notice period. However, aware of the time requirement, plaintiff failed to avail himself of the ability to move to either vacate the notice or for an extension within the 90-day period. This constraint has been so strictly construed that proper filing on the 93rd day has been rejected by the courts (Stein v. Wainwright's Travel Serv., 92 A.D.2d 961, 460 N.Y.S.2d 659), as well as filing on the 92nd day (Brady v. Reynolds Printasign Co., 92 A.D.2d 780, 459 N.Y.S.2d 619).
Even were we to hold the excuse sufficient, dismissal is required because of plaintiff's failure to sufficiently demonstrate the existence of a meritorious cause of action. In Monteferrante v. New York City Fire Dept., 74 A.D.2d 538, 539, 424 N.Y.S.2d 911, citing Sortino v. Fisher, 20 A.D.2d 25, 32, 245 N.Y.S.2d 186, the court held, "The more slender the excuse for the delay, the greater the need to establish merit." Here, only the attorney's affidavit has...
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Slocum v. Board of Educ., Binghamton City School Dist.
...both a justifiable excuse for failure to comply with the note of issue demand and a meritorious claim (see, Aquilino v. Adirondack Tr. Lines, 97 A.D.2d 929, 470 N.Y.S.2d 723). Here, petitioner, through the affirmation of her attorney, sought to justify the delay on two bases: the continuanc......
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...especially since plaintiff failed to either move to vacate the 90-day notice or move for an extension (see, Aquilino v. Adirondack Tr. Lines, 97 A.D.2d 929, 470 N.Y.S.2d 723). An alleged time extension given to plaintiff by defendant's attorney is not supported by the record. To accept plai......
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