Element E, LLC v. Allyson Enters., Inc.

• Decision Date: 26 December 2018
• Docket Number: Index No. 15310/10,2017–04328
• Citation: 91 N.Y.S.3d 444,167 A.D.3d 981
• Parties: ELEMENT E, LLC, Appellant, v. ALLYSON ENTERPRISES, INC., Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 981
91 N.Y.S.3d 444

ELEMENT E, LLC, Appellant,
v.
ALLYSON ENTERPRISES, INC., Respondent, et al., Defendants.

2017–04328
Index No. 15310/10

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

Argued—March 29, 2018
December 26, 2018

91 N.Y.S.3d 445

Leonard Rodney, Mineola, NY, for appellant.

Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Joseph R. Harbeson of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

167 A.D.3d 981

In an action, inter alia, for an accounting, the plaintiff appeals from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered February 22, 2017. The order denied the plaintiff's motion pursuant to CPLR 3216(a) for an extension of time to file a note of issue and to restore the action to the active calendar.

ORDERED that the order is reversed, on the law, without costs or disbursements, that branch of the plaintiff's motion which was to restore the action to the active calendar is granted, and that branch of the plaintiff's motion which was for an extension of time to file a note of issue is granted to the extent that the matter is remitted to the Supreme Court, Nassau County, for the issuance of a 90–day notice in accordance with CPLR 3216.

On January 14, 2013, during a certification conference, the Supreme Court issued an order, which was executed by counsel for the parties, stating that the case was "hereby certified for

167 A.D.3d 982

trial." The order directed, inter alia, that the plaintiff file a note of issue within 90 days, and warned that "[i]f plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court." The plaintiff failed to file the note of issue, and the action was deemed "dismissed" in April 2013. In January 2016, the plaintiff moved for an extension of time to file the note of issue and to restore the action to the active calendar. The court denied the motion, and the plaintiff appeals.

91 N.Y.S.3d 446

An action cannot be dismissed pursuant to CPLR 3216(a)"unless a written demand is served upon ‘the party against whom such relief is sought’ in accordance with the statutory requirements, along with a statement that the ‘default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him for unreasonably neglecting to proceed’ " ( Cadichon v. Facelle, 18 N.Y.3d 230, 235, 938 N.Y.S.2d 232, 961 N.E.2d 623, quoting CPLR 3216[b][3] ; see Deutsche Bank Natl. Trust Co. v. Cotton, 147 A.D.3d 1020, 1021, 46 N.Y.S.3d 913 ).

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