Austin v. Gould, 5868

CourtNew York Supreme Court Appellate Division
Citation159 A.D.3d 422,69 N.Y.S.3d 474 (Mem)
Decision Date01 March 2018
Parties Emmet AUSTIN, et al., Plaintiffs–Appellants, v. Jonathan GOULD, et al., Defendants–Respondents.
Docket Number5868,5869,Index 653921/13

159 A.D.3d 422
69 N.Y.S.3d 474 (Mem)

Emmet AUSTIN, et al., Plaintiffs–Appellants,
v.
Jonathan GOULD, et al., Defendants–Respondents.

5868
5869
Index 653921/13

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

ENTERED: MARCH 1, 2018


Law Office of Edward J. Boyle, Manhasset (Edward J. Boyle of counsel), for appellants.

Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale (Daniel G. Lyons of counsel), for respondents.

Sweeny, J.P., Renwick, Tom, Mazzarelli, Oing, JJ.

159 A.D.3d 422

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered January 20, 2017, which granted defendants' motion to dismiss the summons and complaint pursuant to CPLR 3216, and denied plaintiffs' cross motion for an extension of time to file a note of issue, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered July 11, 2017, which denied plaintiffs' motion to reargue the January 20, 2017 order, unanimously dismissed, without costs, as taken from a nonappealable order.

"When served with a 90–day demand pursuant to CPLR 3216, it is incumbent upon a plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate or extend the 90–day period" ( Primiano v. Ginsberg, 55 A.D.3d 709, 709, 865 N.Y.S.2d 639 [2d Dept. 2008] ; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119 [2d Dept. 2006], lv denied 8 N.Y.3d 805, 831 N.Y.S.2d 107, 863 N.E.2d 112 [2007] ).

The court properly found that plaintiffs failed to provide a justifiable excuse for failing to file a note of issue or request an extension of time within 90 days of the date they admitted receiving the demand letter, May 16, 2016. Their cross motion was filed on August 19, 2016, three days too late (see Umeze v. Fidelis Care N.Y., 17 N.Y.3d 751, 929 N.Y.S.2d 67, 952 N.E.2d 1060 [2011] ).

Plaintiffs assert that they did not timely file the note of issue because they required further discovery. However, the court noted that on March 30, 2016, the date plaintiffs were ordered to file the note of issue,...

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2 practice notes
  • Finizio v. Midwest Custom Case, Inc., 2017–10295
    • United States
    • New York Supreme Court Appellate Division
    • 18 Noviembre 2020
    ...with the Supreme Court's determination that the plaintiff failed to demonstrate a justifiable excuse for the delay (see Austin v. Gould, 159 A.D.3d 422, 422, 69 N.Y.S.3d 474 ; Huger v. Cushman & Wakefield, Inc., 58 A.D.3d 682, 684, 871 N.Y.S.2d 669 ), and failed to demonstrate a good and me......
  • People v. Powell, 5867
    • United States
    • New York Supreme Court Appellate Division
    • 1 Marzo 2018
    ...and we decline to review it in the interest of justice. As an alternative holding, we find that this claim is unsupported by the record, 159 A.D.3d 422which indicates that the court had no intention of imposing anything but a prison sentence, and that any mention of defendant receiving the ......
2 cases
  • Finizio v. Midwest Custom Case, Inc., 2017–10295
    • United States
    • New York Supreme Court Appellate Division
    • 18 Noviembre 2020
    ...with the Supreme Court's determination that the plaintiff failed to demonstrate a justifiable excuse for the delay (see Austin v. Gould, 159 A.D.3d 422, 422, 69 N.Y.S.3d 474 ; Huger v. Cushman & Wakefield, Inc., 58 A.D.3d 682, 684, 871 N.Y.S.2d 669 ), and failed to demonstrate a good and me......
  • People v. Powell, 5867
    • United States
    • New York Supreme Court Appellate Division
    • 1 Marzo 2018
    ...and we decline to review it in the interest of justice. As an alternative holding, we find that this claim is unsupported by the record, 159 A.D.3d 422which indicates that the court had no intention of imposing anything but a prison sentence, and that any mention of defendant receiving the ......

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