Colon v. Papatolis

• Decision Date: 23 May 2012
• Parties: Oscar COLON, respondent, v. Nikilaos PAPATOLIS, defendant,Vasilios Lagos, et al., appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03975

943 N.Y.S.2d 914

95 A.D.3d 1160

Oscar COLON, respondent,

v.Nikilaos PAPATOLIS, defendant,Vasilios Lagos, et al., appellants.

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

May 23, 2012.

Robert M. Levine, New York, N.Y., for appellant.

Efrain Ramos, Jr., Brooklyn, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendants Vasilios Lagos, Glykeria Kolios, and Myrtle Avenue Restaurant Corp. appeal from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered August 8, 2011, which denied their motion pursuant *915 to CPLR 3216 to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Vasilios Lagos, Glykeria Kolios, and Myrtle Avenue Restaurant Corp. pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them is granted.

Having received a 90–day notice, the plaintiff was required either to serve and file a timely note of issue or move, before the default date, for an extension 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, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action ( see CPLR 3216[e]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460; Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119; Estate of Hamilton v. Nassau Suffolk Home Health Care, 1 A.D.3d 474, 767 N.Y.S.2d 230). The plaintiff failed to proffer a justifiable excuse for his failure to comply with the 90–day demand and for the more than one-year delay in the prosecution of this action ( see Baczkowski v. Collins Constr. Co., 89 N.Y.2d at 504, 655 N.Y.S.2d 848, 678 N.E.2d 460; Bowman v. Kusnick, 35 A.D.3d 643, 644, 827 N.Y.S.2d 258; Werbin v. Locicero, 287 A.D.2d 617, 732 N.Y.S.2d 37). Furthermore, the plaintiff's submissions did not include a showing of a potentially meritorious cause of action by one with personal knowledge of the facts ( see Umeze v. Fidelis Care N.Y., 17 N.Y.3d 751, 929 N.Y.S.2d 67, 952 N.E.2d 1060; Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213; Garcia v. Roopnarine, 18 A.D.3d 607, 795 N.Y.S.2d 611; Tietz v. Blatt, 280 A.D.2d 469, 720 N.Y.S.2d 373). Accordingly, the appellants' motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them should have been granted.

In reaching this determination, we have not considered matter dehors the record ( see Poupis v....