Michaels v. Sunrise Building and Remodeling, Inc., 2008-04484.
| Court | New York Supreme Court Appellate Division |
| Citation | 65 A.D.3d 1021,2009 NY Slip Op 06411,885 N.Y.S.2d 110 |
| Docket Number | 2008-04484. |
| Parties | DAVID MICHAELS et al., Appellants, v. SUNRISE BUILDING AND REMODELING, INC., et al., Respondents. |
| Decision Date | 08 September 2009 |
v.
SUNRISE BUILDING AND REMODELING, INC., et al., Respondents.
[65 A.D.3d 1022]
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated April 1, 2008, as granted the motion of the defendant Sunrise Building and Remodeling, Inc., and the separate motion of the defendant United Rockland Stairs, Inc., to dismiss the complaint pursuant to CPLR 3216.
Ordered that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting the motion of the defendant Sunrise Building and Remodeling, Inc., to dismiss the complaint pursuant to CPLR 3216 and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs to the plaintiffs payable by the defendant Sunrise Building and Remodeling, Inc., and one bill of costs to the defendant United Rockland Stairs, Inc., payable by the plaintiffs.
CPLR 3216 allows an action to be dismissed for delays in its prosecution (see CPLR 3216 [a]; see Troche v Lieberman, 57 AD3d 655 [2008]). For an action to be dismissed pursuant to CPLR 3216, three requirements must be satisfied (see CPLR 3216 [b]). Specifically, (1) issue must have been joined, (2) one year must have elapsed following joinder, and: "(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand" (CPLR 3216 [b]).
Although CPLR 3216 requires service by registered or certified mail as a condition precedent to dismissal (see Troche v Lieberman, 57 AD3d at 656; Harrison v Good Samaritan Hosp. Med. Ctr., 43 AD3d 996, 997 [2007]), the Court of Appeals has determined that failure to comply with this requirement "is a procedural irregularity and, absent a showing of prejudice to a substantial right of [a] plaintiff, courts should not deny, as jurisdictionally defective, a defendant's motion to dismiss for neglect to prosecute" (Balancio v American Opt. Corp., 66 NY2d 750, 751-752 [1985]; see Bokhari v Home Depot U.S.A., 4 AD3d 381, 381-382 [2004]; Yi Pao Lu v Scaduto, 303 AD2d 750, 750-751 [2003]).
Although the...
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Dominguez v. Jamaica Med. Ctr.
...conditions precedent to dismissal under CPLR 3216(b)(1) and (2) had also been met ( see Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1022, 885 N.Y.S.2d 110; Huger v. Cushman & Wakefield, Inc., 58 A.D.3d 682, 683, 871 N.Y.S.2d 669). Having received a 90-day notice, the plain......
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HSBC Bank USA, Nat'l Ass'n v. Izzo, 2017–08533
...(see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d 850, 852, 32 N.Y.S.3d 631 ; 109 N.Y.S.3d 888 Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1024, 885 N.Y.S.2d 110 ). The plaintiff's contention that dismissal was too harsh of a penalty is unavailing under the circumstances (see D......
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Bhatti v. Empire Realty Assocs., Inc.
...the existence of a potentially meritorious cause of [101 A.D.3d 1068]action ( see Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1024, 885 N.Y.S.2d 110). Accordingly, the Supreme Court should have denied the plaintiffs' motion, in effect, to vacate the dismissal of the action......
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Wasif v. Khan
...it failed to demand that the plaintiffs serve and file a note of issue ( see CPLR 3216[b]; Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1024, 885 N.Y.S.2d 110). Furthermore, a so-ordered stipulation filed October 29, 2009, which extended the plaintiffs' time to file a note ......
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Dominguez v. Jamaica Med. Ctr.
...conditions precedent to dismissal under CPLR 3216(b)(1) and (2) had also been met ( see Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1022, 885 N.Y.S.2d 110; Huger v. Cushman & Wakefield, Inc., 58 A.D.3d 682, 683, 871 N.Y.S.2d 669). Having received a 90-day notice, the plain......
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HSBC Bank USA, Nat'l Ass'n v. Izzo, 2017–08533
...(see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d 850, 852, 32 N.Y.S.3d 631 ; 109 N.Y.S.3d 888 Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1024, 885 N.Y.S.2d 110 ). The plaintiff's contention that dismissal was too harsh of a penalty is unavailing under the circumstances (see D......
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Bhatti v. Empire Realty Assocs., Inc.
...the existence of a potentially meritorious cause of [101 A.D.3d 1068]action ( see Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1024, 885 N.Y.S.2d 110). Accordingly, the Supreme Court should have denied the plaintiffs' motion, in effect, to vacate the dismissal of the action......
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Wasif v. Khan
...it failed to demand that the plaintiffs serve and file a note of issue ( see CPLR 3216[b]; Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 A.D.3d 1021, 1024, 885 N.Y.S.2d 110). Furthermore, a so-ordered stipulation filed October 29, 2009, which extended the plaintiffs' time to file a note ......