M. v. B. Collision Inc.

• Decision Date: 05 July 2011
• Citation: 2011 N.Y. Slip Op. 05799,86 A.D.3d 534,926 N.Y.S.2d 321
• Parties: M.V.B. COLLISION, INC., doing business as Mid Island Collision, appellant,v.Mike BERMAN, respondent.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 534

926 N.Y.S.2d 321

2011 N.Y. Slip Op. 05799

M.

v.B. COLLISION, INC., doing business as Mid Island Collision, appellant,

v.Mike BERMAN, respondent.

Supreme Court, Appellate Division, Second Department, New York.

July 5, 2011.

OPINION TEXT STARTS HERESteven F. Goldstein, LLP, Carle Place, N.Y. (Gina M. Arnedos of counsel), for appellant.Rivkin Radler LLP, Uniondale, N.Y. (Michael P. Versichelli and Melissa M. Murphy of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered December 3, 2010, which denied its motion to vacate the dismissal of the action pursuant to CPLR 3216 and for leave to file a note of issue.

ORDERED that the order is affirmed, with costs.

The certification order of the Supreme Court dated March 17, 2010, directing the plaintiff to file a note of issue within 90 days, and warning that the action would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90–day notice pursuant to CPLR 3216 ( see Fenner v. County of Nassau, 80 A.D.3d 555, 914 N.Y.S.2d 653; Sicoli v. Sasson, 76 A.D.3d 1002, 1003, 908 N.Y.S.2d 100; Rodriguez v. Five Towns Nissan, 69 A.D.3d 833, 834, 892 N.Y.S.2d 768). Having received a 90–day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue ( see Fenner v. County of Nassau, 80 A.D.3d at 555, 914 N.Y.S.2d 653; Felix v. County of Nassau, 52 A.D.3d 653, 653–654, 860 N.Y.S.2d 196; Giannoccoli v. One Cent. Park W. Assoc., 15 A.D.3d 348, 348–349, 790 N.Y.S.2d 159). In light of the plaintiff's failure to do either, the action was properly dismissed pursuant to CPLR 3216 ( see Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 851 N.Y.S.2d 209).

To vacate the dismissal of the action, the plaintiff was required to demonstrate a justifiable excuse for the delay in properly responding to the 90–day notice and the existence of a potentially meritorious cause of action ( see CPLR 3216[e]; see Fenner v. County of Nassau, 80 A.D.3d at 556, 914 N.Y.S.2d 653; Lauri v. Freeport Union Free School Dist., 78 A.D.3d 1130, 912 N.Y.S.2d 278). The plaintiff failed to establish that the only cause of action remaining in this case, which was to recover damages for breach of contract, was potentially meritorious ( see Matter of...