Bhatti v. Empire Realty Assocs., Inc.

• Decision Date: 26 December 2012
• Parties: Noor BHATTI, etc., et al., respondents, v. EMPIRE REALTY ASSOCIATES, INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1066

956 N.Y.S.2d 557

2012 N.Y. Slip Op. 09018

Noor BHATTI, etc., et al., respondents,

v.EMPIRE REALTY ASSOCIATES, INC., et al., appellants.

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

Dec. 26, 2012.

McManus & Richter, P.C., New York, N.Y. (Nicholas P. Chrysanthem, Scott C. Tuttle, and Caitlin Nutter of counsel), for appellants.

Martin R. Munitz, P.C., New York, N.Y. (Louis A. Badolato and George Greene of counsel), for respondents.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Silber, J.), dated April 12, 2012, which granted the plaintiffs' motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to active status, and to extend their time to file a note of issue.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to active status, and to extend their time to file a note of issue is denied.

In a compliance conference order date March 3, 2006, the Supreme Court directed the plaintiffs to file a note of issue on or before September 3, 2006, and warned that the action would be dismissed if the plaintiffs failed to comply. Counsel for the plaintiffs signed the order, acknowledging receipt thereof. This order had the same effect as a 90–day notice pursuant to CPLR 3216 ( see Shcherbina v. Queens Nassau Nursing Home, Inc., 66 A.D.3d 869, 886 N.Y.S.2d 620;Anjum v. Karagoz, 48 A.D.3d 605, 852 N.Y.S.2d 354). Therefore, the plaintiffs were required either to serve and file a timely note of issue or to move, before the default date, for an extension of time pursuant to CPLR 2004 ( see Stallone v. Richard, 95 A.D.3d 875, 876, 943 N.Y.S.2d 225;Davis v. Cardiovascular Consultants of Long Is., P.C., 65 A.D.3d 1076, 1077, 886 N.Y.S.2d 61;Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213;Giannoccoli v. One Cent. Park W. Assoc., 15 A.D.3d 348, 348–349, 790 N.Y.S.2d 159;DeVore v. Lederman, 14 A.D.3d 648, 649, 789 N.Y.S.2d 507). The plaintiffs did neither. Accordingly, the action was properly dismissed pursuant to CPLR 3216 ( see Shcherbina v. Queens Nassau Nursing Home, Inc., 66 A.D.3d at 869, 886 N.Y.S.2d 620;Bowman v. Kusnick, 35 A.D.3d 643, 644, 827 N.Y.S.2d 258).

To vacate the dismissal of an action pursuant to CPLR 3216, the plaintiffs were required to demonstrate a justifiable excuse for their failure to comply with the compliance conference order and the existence of 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;Stallone v. Richard, 95 A.D.3d at 876, 943 N.Y.S.2d 225;Felix v. County of Nassau, 52 A.D.3d 653, 654, 860 N.Y.S.2d 196;Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 851 N.Y.S.2d 209). Here, the conclusory and unsubstantiated claim of law office failure proffered by the plaintiffs did not rise to the level of a justifiable excuse ( see Stallone v. Richard, 95 A.D.3d at 876, 943 N.Y.S.2d 225;Fenner v. County of Nassau, 80 A.D.3d 555, 556, 914 N.Y.S.2d 653;Lugauer v....