Bowman v. Kusnick
| Decision Date | 19 December 2006 |
| Docket Number | 2005-09871. |
| Citation | 2006 NY Slip Op 09541,35 A.D.3d 643,827 N.Y.S.2d 258 |
| Parties | DANE BOWMAN, Appellant, v. JOSEPH KUSNICK et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
The compliance conference order dated September 25, 2003 directing the plaintiff to file a note of issue on or before January 21, 2004 and warning that failure to comply would result in the dismissal of the action had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Hoffman v Kessler, 28 AD3d 718 [2006]; C&S Realty, Inc. v Soloff, 22 AD3d 515 [2005]; Vinikour v Jamaica Hosp., 2 AD3d 518 [2003]). The order was signed by counsel for both parties. The plaintiff failed to comply with this order either by timely serving and filing a note of issue or by moving to extend the period for doing so, and the action was properly dismissed pursuant to CPLR 3216 (see Hoffman v Kessler, supra).
To vacate the dismissal of the action pursuant to CPLR 3216, the plaintiff was required to demonstrate a reasonable excuse for his default and a meritorious cause of action (see Betty v City of New York, 12 AD3d 472, 473 [2004]; Wechsler v First Unum Life Ins. Co., 295 AD2d 340, 341 [2002]). While the court may accept law office failure that is not willful or deliberate as a reasonable excuse (see Reyes v Ross, 289 AD2d 554 [2001]; Flomenhaft v Baron, 281 AD2d 389 [2001]), conclusory and unsubstantiated assertions of law office failure are insufficient (see Werbin v Locicero, 287 AD2d 617 [2001]), and a pattern of willful default and neglect will not be excused (see Wechsler v First Unum Life Ins. Co., supra at 341; Wynne v Wagner, 262 AD2d 556 [1999]; Campenni v Ridgecroft Estates Owners, 261 AD2d 496 [1999]).
The plaintiff failed to demonstrate what steps, if any, he took to conduct further discovery during the four-month period before the January 21, 2004 deadline for filing a note of issue. The assertion by the plaintiff's attorney that the delay in conducting discovery was due to a calendar error did not adequately explain his failure to conduct further discovery or his over one-year delay in moving to vacate the default (see Wechsler v First Unum...
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