Bokhari v. Home Depot U.S.A., Inc.

Decision Date09 February 2004
Docket Number2003-01914.
Citation4 A.D.3d 381,2004 NY Slip Op 00627,771 N.Y.S.2d 395
PartiesGHAZI BOKHARI, Appellant, v. HOME DEPOT U.S.A., INC., et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The demand pursuant to CPLR 3216 attached to the compliance conference order dated March 28, 2000, and signed by counsel for all parties, constituted a valid 90-day notice pursuant to CPLR 3216(seeApicella v Estate of Apicella,305 AD2d 621[2003], lv denied100 NY2d 513[2003];Aguilar v Knutson,296 AD2d 562[2002];Flomenhaft v Baron,281 AD2d 389[2001]).Contrary to the plaintiff's contention, failure to serve a CPLR 3216 90-day notice by certified or registered mail is a procedural irregularity, and, absent a showing of prejudice to a substantial right of the plaintiff, should not result in vacating a dismissal of the action (seeBalancio v American Opt. Corp.,66 NY2d 750, 751[1985];Yi Pao Lu v Scaduto,303 AD2d 750[2003]).Here, having received a 90-day notice, the plaintiff was required either to timely file a note of issue or to move, before the default date, to vacate the notice or to extend the 90-day period (seeApicella v Estate of Apicella, supra;Yi Pao Lu v Scaduto, supra;Aguilar v Knutson, supra).

After the plaintiff failed to comply with the demand, the Supreme Court, on its own initiative, dismissed the complaint pursuant to CPLR 3216 on January 19, 2001.Over a year later, the plaintiff moved, in effect, to vacate the dismissal, and was required to establish a reasonable excuse for noncompliance with the demand and a meritorious cause of action (seeSustad v Karagiannis,305 AD2d 664[2003];Vento v Bargain Bilge W.,292 AD2d 596[2002];Werbin v Locicero,287 AD2d 617[2001]).Since the plaintiff failed to establish a reasonable excuse, the court properly denied his motion, in effect, to vacate the dismissal.

Prudenti, P.J., H. Miller, Schmidt and Cozier, JJ., concur.

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15 cases
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    • United States
    • New York Supreme Court — Appellate Division
    • November 1, 2011
    ...v. Campbell, 86 A.D.3d 623, 624, 927 N.Y.S.2d 602; Sanchez v. Serje, 78 A.D.3d 1155, 1156, 913 N.Y.S.2d 919; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395). The plaintiff did none of these. The plaintiff's mere service of a note of issue upon the defendants was insufficient t......
  • Lee v. Rad
    • United States
    • New York Supreme Court — Appellate Division
    • October 7, 2015
    ...demand or extend the 90–day period (see Benitez v. Mutual of Am. Life Ins. Co., 24 A.D.3d 708, 808 N.Y.S.2d 698 ; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395 ; Brown v. World Fin. Props., 306 A.D.2d 303, 304, 760 N.Y.S.2d 668 ). In general, if a plaintiff fails to comply wi......
  • Dominguez v. Jamaica Med. Ctr.
    • United States
    • New York Supreme Court — Appellate Division
    • April 20, 2010
    ...of time pursuant to CPLR 2004 ( see Benitez v. Mutual of Am. Life Ins. Co., 24 A.D.3d 708, 808 N.Y.S.2d 698; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395; McKinney v. Corby, 295 A.D.2d 580, 581, 744 N.Y.S.2d 882). The plaintiff did neither. To avoid dismissal of the action, ......
  • Griffith v. Wray
    • United States
    • New York Supreme Court — Appellate Division
    • August 14, 2013
    ...extend the 90–day period pursuant to CPLR 2004 ( see Sanchez v. Serje, 78 A.D.3d 1155, 1156, 913 N.Y.S.2d 919;Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 382, 771 N.Y.S.2d 395;McKinney v. Corby, 295 A.D.2d 580, 581, 744 N.Y.S.2d 882). Having failed to pursue either of the foregoing options,......
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