East Point Collision Works v. Liberty Mutual Ins.

• Decision Date: 03 December 2001
• Docket Number: 2,01-04723
• Parties: EAST POINT COLLISION WORKS, INC., APPELLANT, v. LIBERTY MUTUAL INSURANCE COMPANY, ET AL., RESPONDENTS. 2001-04723 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

EAST POINT COLLISION WORKS, INC., APPELLANT, v. LIBERTY MUTUAL INSURANCE COMPANY, ET AL., RESPONDENTS.

2001-04723

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - November 21, 2001

December 3, 2001

Barry V. Pittman, Bay Shore, N.Y., for appellant.

Feldman, Rudy, Kirby & Farquharson, P.C., Westbury, N.Y. (Bruce W. Farquharson of counsel), for respondents.

DECISION & ORDER

Gabriel M. Krausman, J.P.

Daniel F. Luciano

Nancy E. Smith

Thomas A. Adams, JJ.

In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Oshrin, J.), entered May 3, 2001, which, upon an order of the same court, dated March 20, 2000, granting the defendant's motion to dismiss the complaint pursuant to CPLR 3216, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

To avoid a default when served with a 90-day notice, a plaintiff must comply either by timely filing a note of issue or moving for an extension of time within which to comply pursuant to CPLR 2004 (see, Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 553; Carte v. Segall, 134 A.D.2d 397, 398). Having failed to pursue either of the foregoing options, the plaintiff was obligated to demonstrate a reasonable excuse and a meritorious cause of action to avoid the sanction of dismissal (see, CPLR 3216[e]; Papadopoulas v. R.B. Supply Corp., supra). The vague, unelaborated assertions of law office failure made by the plaintiff's attorney did not constitute a reasonable excuse for the default in this case (see, Flomenhaft v. Baron, 281 A.D.2d 389).

KRAUSMAN, J.P., LUCIANO, SMITH and ADAMS, JJ., concur.