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 |
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 the
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 ( see Sicoli 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 ( see Sharpe 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 failure
to do either, the complaint was properly dismissed pursuant to CPLR 3216 ( see Petersen 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 ( see CPLR 3216[e]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d...
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