Gagnon v. Campbell
| Court | New York Supreme Court Appellate Division |
| Citation | 927 N.Y.S.2d 602,2011 N.Y. Slip Op. 06092,86 A.D.3d 623 |
| Parties | Michelle GAGNON, respondent,v.Colleen CAMPBELL, appellant. |
| Decision Date | 26 July 2011 |
86 A.D.3d 623
927 N.Y.S.2d 602
2011 N.Y. Slip Op. 06092
Michelle GAGNON, respondent,
v.
Colleen CAMPBELL, appellant.
Supreme Court, Appellate Division, Second Department, New York.
July 26, 2011.
Neil L. Kanzer, Garden City, N.Y. (Lorraine M. Korth of counsel), for appellant.
[86 A.D.3d 623] In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), entered June 9, 2010, as granted that branch of the plaintiff's motion which was for leave to renew her opposition to the defendant's motion, inter alia, to dismiss the complaint pursuant to CPLR 3216 and the plaintiff's cross motion, in effect, to extend the time to serve and file a note of issue, which had been determined in an order of the same court dated November 28, 2008, and, upon renewal, in effect, vacated the order dated November 28, 2008, denied the defendant's motion, among other things, to dismiss the complaint, and granted the plaintiff's cross
motion, in effect, to extend the time to serve and file a note of issue.
ORDERED that the order entered June 9, 2010, is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for leave to renew her opposition to the defendant's motion, inter alia, to dismiss the [86 A.D.3d 624] complaint pursuant to CPLR 3216 and the plaintiff's cross motion, in effect, to extend the time to serve and file a note of issue are denied, and the order dated November 28, 2008, is reinstated.
The defendant served the plaintiff's attorney with a valid 90–day demand pursuant to CPLR 3216 on January 9, 2008. Upon receipt of the 90–day demand, the plaintiff was required to comply with it either by serving and filing a timely note of issue or by moving, before the default date, to vacate the demand or to extend the 90–day period pursuant to CPLR 2004 ( see Sanchez v. Serje, 78 A.D.3d 1155, 1156, 913 N.Y.S.2d 919; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395; McKinney v. Corby, 295 A.D.2d 580, 581, 744 N.Y.S.2d 882). Having failed to pursue any of the foregoing options, the plaintiff was obligated to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action to avoid the sanction of dismissal ( see CPLR 3216[e]; Dominguez v. Jamaica Med. Ctr., 72 A.D.3d 876, 898 N.Y.S.2d 869; Picot v. City of New York, 50 A.D.3d 757, 758, 855...
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