Harrington v. Toback
| Decision Date | 21 November 2006 |
| Docket Number | 2005-06340. |
| Citation | 825 N.Y.S.2d 118,34 A.D.3d 640,2006 NY Slip Op 08739 |
| Parties | BARBARA HARRINGTON, Appellant, v. TRACEY GLEN TOBACK et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is affirmed, with costs.
Contrary to the plaintiff's contention, the defendants were not precluded from serving a 90-day notice upon her within one year of the date the case was stricken from the trial calendar pursuant to CPLR 3404 and the original note of issue, in effect, was stricken (see Cascio v O'Daly, 221 AD2d 494, 495 [1995]; see also Hansel v Lamb, 227 AD2d 838 [1996]). Once served with the 90-day notice, the plaintiff was required to comply with it by timely filing a note of issue, or by moving, before the default date, to vacate the notice or to extend the 90-day period (see Randolph v Cornell, 29 AD3d 557 [2006]; Die Matic Prods., Inc. v Flair Intl. Corp., 23 AD3d 513, 514 [2005]; Sharpe v Osorio, 21 AD3d 467, 468 [2005]; McKinney v Corby, 295 AD2d 580, 581 [2002]). The plaintiff did not timely file the note of issue. While the plaintiff purportedly timely moved to vacate the 90-day notice or, in the alternative, to extend the time within which to file the note of issue, under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the motion, especially in light of the lengthy delay in prosecuting the action, the inadequate excuse for the delay, and the prejudice to the defendants (see Florestal v Little Flower Children's Servs. of N.Y., 9 AD3d 348 [2004]; Acevedo v DePena, 6 AD3d 636 [2004]).
The plaintiff's remaining contention is without merit.
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...prejudice to the defendant ( see Doe v. Board of Educ. of Longwood Cent. Schools, 52 A.D.3d 767, 860 N.Y.S.2d 213; Harrington v. Toback, 34 A.D.3d 640, 641, 825 N.Y.S.2d 118; Florestal v. Little Flower Childrens Servs. of N.Y., 9 A.D.3d 348, 778 N.Y.S.2d 913; Acevedo v. DePena, 6 A.D.3d 636......
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...in this case, and the prejudice to the defendants ( see Sanchez v. Serje, 78 A.D.3d at 1156, 913 N.Y.S.2d 919; Harrington v. Toback, 34 A.D.3d 640, 640–641, 825 N.Y.S.2d 118). The plaintiff's remaining contention is without ...
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