Koehler v. Young Choi
| Decision Date | 04 March 2008 |
| Docket Number | 2007-07062. |
| Parties | CAROL KOEHLER, Appellant-Respondent, v. SEI YOUNG CHOI, Respondent-Appellant, and FAMILY SERVICES, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable by the plaintiff to the defendant Family Services, Inc., and one bill of costs payable by the defendant Sei Young Choi to the plaintiff.
The defendant Family Services, Inc. (hereinafter Family Services), served the plaintiff, pursuant to CPLR 3216, with a 90-day notice dated October 17, 2006, which the plaintiff received on October 18, 2006. The defendant Sei Young Choi did not serve his own 90-day notice. After the 90-day period for serving and filing a note of issue had expired, Family Services and Sei Young Choi separately moved, inter alia, pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against each of them. In response, the plaintiff cross-moved to extend her time to serve and file a note of issue. The Supreme Court granted Family Services's motion but, among other things, denied that branch of Choi's motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him. The court granted the plaintiff's cross motion to extend the time to serve and file a note of issue.
The plaintiff failed to file a note of issue or to move, before the default date, to vacate the 90-day notice or to extend the 90-day period for service and filing of a note of issue. She failed to demonstrate either a justifiable excuse for the delay in complying with the 90-day notice or a meritorious cause of action insofar as asserted against Family Services—the party which served the notice (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Zito v Jastremski, 35 AD3d 458 [2006]). The plaintiff's only excuse, that discovery had not been completed, was insufficient, since she failed to adequately explain her own neglect in complying with her outstanding discovery...
To continue reading
Request your trial
-
Mooney v. City of N.Y.
...v. Koukos, 74 A.D.3d 946, 902 N.Y.S.2d 627; Brownfield v. Ferris, 49 A.D.3d 790, 791, 855 N.Y.S.2d 565; Koehler v. Sei Young Choi, 49 A.D.3d 504, 505, 854 N.Y.S.2d 726; Stewart v. Tapps Supermarket, 289 A.D.2d 561, 735 N.Y.S.2d 800). Finally, since more than nine years passed between the ti......
-
Genna v. Klempner
... ... discovery has yet to be completed is no excuse for her ... failure to prosecute (see Koehler v Sei Young Choi, ... 49 A.D.3d 504, 505 [2d Dept 2008]) ... This ... court ... ...
-
Adbul v. Lopez
...cause of action against Karmakar ( see Mooney v. City of New York, 78 A.D.3d 795, 797, 911 N.Y.S.2d 395;Koehler v. Sei Young Choi, 49 A.D.3d 504, 505, 854 N.Y.S.2d 726;Lugauer v. Forest City Ratner Co., 44 A.D.3d 829, 830, 843 N.Y.S.2d 456). Accordingly, the Supreme Court properly granted t......
-
Sicoli v. Sasson, 2009 NY Slip Op 31467(U) (N.Y. Sup. Ct. 6/29/2009)
...it for failure to prosecute, upon finding that the plaintiff failed to comply with the 90-day notice Koehler v. Sei Young Choi, 49 A.D.3d 504, 505, 854 N.Y.S.2d 726 [2nd Dept, 2008]. The Second Department has also In order to excuse their default and to restore this action to the calendar, ......