Benitez v. Mutual of America Life Insurance Company, 2004-02429.

• Court: New York Supreme Court Appellate Division
• Citation: 808 N.Y.S.2d 698,24 A.D.3d 708,2005 NY Slip Op 10094
• Decision Date: 27 December 2005
• Parties: CONRADO BENITEZ, Appellant, v. MUTUAL OF AMERICA LIFE INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent. GENERAL INDUSTRIAL SERVICE CORPORATION et al., Third-Party Defendants-Respondents.
• Docket Number: 2004-02429.

24 A.D.3d 708 808 N.Y.S.2d 698 2005 NY Slip Op 10094 CONRADO BENITEZ, Appellant,
v.
MUTUAL OF AMERICA LIFE INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent.
GENERAL INDUSTRIAL SERVICE CORPORATION et al., Third-Party Defendants-Respondents. 2004-02429. Appellate Division of the Supreme Court of the State of New York, Second Department. December 27, 2005.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Grays, J.), entered February 25, 2004, which, upon an order of the same court dated November 28, 2003, denying his motion to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to the active calendar, and to file a note of issue, dismissed the action.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiff's contentions, the compliance conference order had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Vinikour v. Jamaica Hosp., 2 AD3d 518, 519 [2003]; Aguilar v. Knutson, 296 AD2d 562 [2002]; Werbin v. Locicero, 287 AD2d 617 [2001]). Having received a 90-day notice, the plaintiff was required to either timely file a note of issue or 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 [2004]; McKinney v. Corby, 295 AD2d 580, 581 [2002]). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

A case dismissed pursuant to CPLR 3216 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see Sapir v. Krause, Inc., 8 AD3d 356, 356-357 [2004]; Lopez v. Imperial Delivery Serv., 282 AD2d 190, 197 [2001]). The plaintiff failed to offer a reasonable excuse for his lengthy delay after the 90-day notice in moving for leave to file a note of issue (see Sapir v. Krause, Inc., supra). Accordingly, the plaintiff's motion was properly denied.

The dissent erroneously notes that this Court held in Boland v. Biordi (282 AD2d 421 [2001]), that a Supreme Court order directing that a note of issue be filed did not constitute a valid 90-day notice on the ground, inter alia, that it was issued four

24 A.D.3d 709

months after issue had been joined in the third-party action. This Court did note that fact by way of background, but an examination of the record in that case reveals that there, the purported 90-day notice was issued as of a date when disclosure was not completed (despite a contrary pre-printed statement in a form order containing the CPLR 3216 notice), and the Supreme Court so-ordered a handwritten stipulation on that same date providing that the plaintiffs had to respond to certain of the third-party defendants' discovery demands by a date certain, and that no note of issue could be filed prior to service of those responses. Under those circumstances, it was sensible to conclude that the purported 90-day notice was invalid inasmuch as on the same date it issued, another order issued essentially precluding the plaintiffs from complying with the 90-day notice until the subject disclosure was completed. The facts at bar are different.

H. Miller, J.P., Mastro and Lifson, JJ., concur.

Goldstein, J., dissents and votes to reverse the judgment appealed from, grant the plaintiff's motion, deny the defendant's cross motion, and modify the order accordingly with the following memorandum, with which S. Miller, J., concurs:

The instant action seeks damages for personal injuries allegedly sustained on October 5, 1993 when the plaintiff, an employee of the second third-party defendant, Safeway Environmental Corporation (hereinafter Safeway), performing asbestos removal at the defendant's premises, fell from a ladder. The action was commenced on or about December 12, 1994 against the owner of the premises, Mutual of America...