Fenner v. County of Nassau

• Decision Date: 11 January 2011
• Citation: 914 N.Y.S.2d 653,80 A.D.3d 555
• Parties: Raymond FENNER, etc., respondent, v. COUNTY OF NASSAU, et al., appellants.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 653

80 A.D.3d 555

Raymond FENNER, etc., respondent,

v.COUNTY OF NASSAU, et al., appellants.

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

Jan. 11, 2011.

John Ciampoli, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), for appellants.

Frederick K. Brewington, Hempstead, N.Y. (Ira Fogelgaren of counsel), for respondent.

In action to recover damages for personal injuries and wrongful death, etc., the defendants appeal from an order of the Supreme Court, Nassau County(LaMarca, J.), entered September 21, 2009, which granted the plaintiff's motion, inter alia, pursuant to CPLR 5015(a) to vacate thedismissal of the complaint pursuant to CPLR 3216 and to restore the action to the pre-note of issue calendar.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the plaintiff's motion to vacate the dismissal of the complaint and to restore the action to the pre-note of issue calendar is denied.

The certification order of the Supreme Court dated February 19, 2008, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216( seeSicoli v. Sasson, 76 A.D.3d 1002, 908 N.Y.S.2d 100;Rodriguez v. Five Towns Nissan, 69 A.D.3d 833, 892 N.Y.S.2d 768;Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 851 N.Y.S.2d 209).Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue ( seeSharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213;DeVore v. Lederman, 14 A.D.3d 648, 649, 789 N.Y.S.2d 507;Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 382, 771 N.Y.S.2d 395).In light of the plaintiff's failureto do either, the complaint was properly dismissed pursuant to CPLR 3216( seePetersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 851 N.Y.S.2d 209).

To vacate the dismissal of the complaint, the plaintiff was required to demonstrate a justifiable excuse for his failure to comply with the certification order and the existence of a potentially meritorious cause of action ( seeCPLR 3216[e];Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;Rodriguez v. Five Towns Nissan, 69 A.D.3d at 834, 892 N.Y.S.2d 768;Davis v. Cardiovascular Consultants of Long Is., P.C., 65 A.D.3d 1076, 1077, 886 N.Y.S.2d 61;Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 851 N.Y.S.2d 209).

In support of his motion, the plaintiff failed to proffer any excuse for his failure to comply with the certification order.The excuse of law office failure proffered by the plaintiff's attorney for the first time in a reply affirmation was not properly before the Supreme Court( seeCPLR 2214;47 Thames Realty, LLC v. Robinson, 61 A.D.3d 923, 924, 878 N.Y.S.2d 752;Murray v New York City Health & Hosps. Corp., 52 A.D.3d 792, 794, 861 N.Y.S.2d 372;Levine v. Forgotson's Cent. Auto & Elec., Inc., 41 A.D.3d 552, 553, 840 N.Y.S.2d 598).Moreover, the conclusory and unsubstantiated claim of law office failure did not rise to the level of a reasonable excuse ( seePetersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d at 784, 851 N.Y.S.2d 209;Matter of Bloom v. Lubow, 45 A.D.3d 680, 845 N.Y.S.2d 439;Lugauer v. Forest City Ratner Co., 44 A.D.3d 829, 830, 843 N.Y.S.2d 456).Furthermore, the plaintiff's motion papers failed to establish the existence of a...