Flomenhaft v. Baron

• Decision Date: 05 March 2001
• Citation: 281 A.D.2d 389,721 N.Y.S.2d 381
• Parties: ELEANOR FLOMENHAFT, Appellant,<BR>v.<BR>ROBERT P. BARON et al., Respondents.
• Court: New York Supreme Court — Appellate Division

281 A.D.2d 389

721 N.Y.S.2d 381

ELEANOR FLOMENHAFT, Appellant,

v.ROBERT P. BARON et al., Respondents.

Decided March 5, 2001.

S. Miller, J. P., Friedmann, H. Miller and Smith, JJ., concur.

Ordered that the appeal from the order dated July 5, 2000, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated February 23, 2000 is affirmed, and it is further,

Ordered that the respondents are awarded one bill of costs.

On August 21, 1998, the Supreme Court issued an order sua sponte directing the plaintiff to serve and file a note of issue within 90 days, and stating that the failure to comply might serve as a basis for dismissal pursuant to CPLR 3216. The plaintiff failed to comply with this order, which constituted a valid 90-day notice, by either timely filing a note of issue or moving to extend the 90-day period (see, Trust Co. v Genser, 271 AD2d 524; Seletsky v St. Francis Hosp., 263 AD2d 452; Safina v Queens-Long Is. Med. Group, 238 AD2d 395). Thereafter, on May 19, 1999, the court dismissed the complaint based upon the plaintiff's failure to comply with its 90-day notice. Seven months later, the plaintiff moved, in effect, to vacate the order dismissing her complaint, attributing her failure to file a note of issue to an inadvertent oversight by her attorney. The Supreme Court denied the plaintiff's motion, finding that she did not demonstrate a reasonable excuse for her failure to comply with the 90-day notice, and the existence of a meritorious cause of action.

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in denying her motion to vacate the order dismissing the complaint for failing to comply with the 90-day notice. Although the courts have the discretion to excuse law office failure which is not willful or deliberate (see, Lefkowitz v Kaye, Scholer, Fierman, Hays & Handler, 271 AD2d 576), the conclusory and unsubstantiated assertions of law office failure made by the plaintiff's attorney were insufficient to excuse the extensive delay in complying with the 90-day notice, and in seeking to vacate the order dismissing the complaint (see, Gourdet v Hershfeld, 277 AD2d 422; Gray v Gray, 266 AD2d 261; Eretz Funding v Shalosh Assocs., 266 AD2d 184). In addition, the plaintiff's affidavit failed to demonstrate that her causes of action to recover damages for tortious interference with contract and prima facie tort are meritorious (see, Morrell v...