Forman v. Fleet Bank

• Citation: 691 N.Y.S.2d 782
• Parties: Neal FORMAN, respondent, v. FLEET BANK, appellant (and a third-party action).
• Decision Date: 14 June 1999
• Court: New York Supreme Court — Appellate Division

Page 782

691 N.Y.S.2d 782

Neal FORMAN, respondent, v. FLEET BANK, appellant (and a third-party action).

Supreme Court, Appellate Division,

Second Department, New York.

June 14, 1999.

Fischbein, Badillo, Wagner, Harding, New York, N.Y. (Gary M. Fellner of counsel), for appellant.

Mait, Wang & Simmons, New York, N.Y. (William R. Mait of counsel), for respondent.

In an action to recover damages for, inter alia, breach of contract, the defendant appeals from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated November 16, 1998, as denied its motion pursuant to CPLR 3216 to dismiss the complaint and granted the plaintiff's cross motion to compel disclosure.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the Supreme Court's conclusion, its June 5, 1998, order constituted a valid 90-day notice pursuant to CPLR 3216 (see, Safina v. Queens-Long Is. Med. Group, 238 A.D.2d 395, 657 N.Y.S.2d 337; Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653, 646 N.Y.S.2d 15; cf., Ameropan Realty Corp. v. Rangeley Lakes Corp., 222 A.D.2d 631, 635 N.Y.S.2d 691). Thus, it was incumbent upon the plaintiff to comply with the notice by filing an appropriate note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period (see, Jimenez v. Gamboa, 240 A.D.2d 470, 659 N.Y.S.2d 786; Turman v. Amity OBG Assocs., 170 A.D.2d 668, 567 N.Y.S.2d 87; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483).

Here, the plaintiff failed to do so. To avoid the sanction of dismissal, the plaintiff was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and that he had a meritorious cause of action (see, Jimenez v. Gamboa, supra; Papadopoulas v. R.B. Supply Corp., supra; Spierto v. Pennisi, 223 A.D.2d 537, 636 N.Y.S.2d 118). Upon our review of the record, we find that the plaintiff met this burden. Thus, the Supreme Court did not err in denying the appellant's motion to dismiss and in granting the plaintiff's cross motion to compel disclosure.

MANGANO, P.J., SANTUCCI, KRAUSMAN, FLORIO, and H. MILLER, JJ., concur.