Giannoccoli v. One Central Park West Associates
Decision Date | 07 February 2005 |
Docket Number | 2004-00292. |
Citation | 2005 NY Slip Op 00979,15 A.D.3d 348,790 N.Y.S.2d 159 |
Parties | PASQUALE GIANNOCCOLI et al., Respondents, v. ONE CENTRAL PARK WEST ASSOCIATES et al., Defendants and Third-Party Plaintiffs-Respondents, et al., Respondents. CLEVELAND WRECKING COMPANY et al., Third-Party Defendants-Appellants. |
Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law and as a matter of discretion, by adding a provision thereto directing the plaintiffs' attorney to personally pay a sanction in the sum of $1,000 to the third-party defendants, and directing that in the event the condition is not complied with, then the motion is denied; as so modified, the order is affirmed, without costs or disbursements; and it is further,
Ordered that the sanction shall be paid within 60 days after service upon the plaintiffs' attorney of a copy of this decision and order.
Contrary to the plaintiffs' contention, the compliance conference order dated June 19, 2002, inter alia, directing the plaintiffs to serve and file a note of issue by October 15, 2002, and warning that the failure to do so would result in dismissal, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Betty v City of New York, 12 AD3d 472 [2004]; Vinikour v Jamaica Hosp., 2 AD3d 518, 519 [2003]; Wechsler v First Unum Life Ins. Co., 295 AD2d 340 [2002]). When the plaintiffs failed to comply with this order by either timely serving and filing a note of issue or moving to extend the period for doing so, the action was dismissed pursuant to CPLR 3216 (see Werbin v Locicero, 287 AD2d 617 [2001]; Flomenhaft v Baron, 281 AD2d 389, 390 [2001]; Trust Co. of N.J. v Genser, 271 AD2d 524 [2000]).
An action dismissed pursuant to CPLR 3216 may be restored only if the plaintiffs can demonstrate both a reasonable excuse for the default and a meritorious cause of action (see CPLR 3216 [e]; Betty v City of New York, supra; Wechsler v First Unum Life Ins. Co., supra). The plaintiffs demonstrated that their action has merit. Furthermore, the plaintiffs' counsel had...
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...3216 on January 22, 1999 ( see Felix v. County of Nassau, 52 A.D.3d 653, 654, 860 N.Y.S.2d 196; Giannoccoli v. One Cent. Park W. Assoc., 15 A.D.3d 348, 349, 790 N.Y.S.2d 159; Werbin v. Locicero, 287 A.D.2d 617, 617–618, 732 N.Y.S.2d 37). The plaintiff failed to move to vacate the dismissal ......