Lopez v. Pathmark Supermarket, Inc.

• Decision Date: 29 July 1996
• Citation: Lopez v. Pathmark Supermarket, Inc., 645 N.Y.S.2d 864, 229 A.D.2d 566 (N.Y. App. Div. 1996)
• Parties: Karen LOPEZ, Respondent, v. PATHMARK SUPERMARKET, INC., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 864

645 N.Y.S.2d 864

229 A.D.2d 566

Karen LOPEZ, Respondent, v. PATHMARK SUPERMARKET, INC., Appellant, et al., Defendants.

Supreme Court, Appellate Division Second Department.

July 29, 1996.

Montfort, Healy, McGuire & Salley, Garden City (Frank J. Cafaro, Edward R. Rimmels, and E. Richard Rimmels, Jr., of counsel), for appellant.

Portnoy & Portnoy, P.L.L.C., Huntington Station (Purcell & Ingrao, P.C. [Terrance J. Ingrao and Anthony Marino] of counsel), for respondent.

Before THOMPSON, J.P., and COPERTINO, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages, inter alia, for false arrest, the defendant Pathmark Supermarket, Inc., appeals from an order of the Supreme Court, Suffolk County (Gowan, J.), dated September 5, 1995, which denied its motion to dismiss the complaint for want of prosecution.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

"CPLR 3216 'provides a party confronted with a less than diligent adversary with a means to expedite the prosecution of the action by serving upon him a written demand that he file a note of issue within 90 days, or, in the event of a default, risk dismissal of the action' (Carte v. Segall, 134 A.D.2d 397, 398 [520 N.Y.S.2d 944]). In order 'to avoid a default, a plaintiff served with a 90-day notice must comply either by timely filing a note of issue or moving for an extension of time within which to comply pursuant to CPLR 2004' (Carte v. Segall, supra, at 398 ; Mackay v. Bradley, 121 A.D.2d 515 [503 N.Y.S.2d 833]; Abrams, Kochman, Rathskeller v. Esquire Motels, 79 A.D.2d 879 [434 N.Y.S.2d 539])" (Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 552-553, 543 N.Y.S.2d 483).

In the case at bar the plaintiff failed to file a note of issue or seek an extension of time to do so after the appellant served its 90-day demand. Indeed, not only did the plaintiff ignore the demand, but, in fact, the plaintiff did virtually nothing to prosecute the action after the service of the complaint. Thus, the action was subject to dismissal when the appellant brought its motion pursuant to CPLR 3216(e) unless the plaintiff demonstrated a justifiable excuse for the delay and a meritorious cause of action. Since the plaintiff did not demonstrate a justifiable excuse for failing to file a note of issue in compliance with the demand, the motion to dismiss should have been granted (see, Armenia v. Carini, 174 A.D.2d 1040, 572 N.Y.S.2d 205; Papadopoulas v. R.B. Supply Corp., supra; Mason v. Simmons, 139 A.D.2d 880, 527 N.Y.S.2d 611; CIC Intl. v. Swiss Bank Corp., ...