Palumbo v. Dell

• Decision Date: 04 May 2010
• Citation: Palumbo v. Dell, 899 N.Y.S.2d 642, 73 A.D.3d 723 (N.Y. App. Div. 2010)
• Parties: Donald PALUMBO, appellant, v. Joseph DELL, et al., respondents.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 642

73 A.D.3d 723

Donald PALUMBO, appellant,

v.Joseph DELL, et al., respondents.

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

May 4, 2010.

Jospeh M. Latino, Croton-on-Hudson, N.Y., for appellant.

Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Merril S. Biscone of counsel), for respondents.

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County(Adams, J.), entered April 8, 2009, which denied his motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 and to restore the action to the trial calendar.

ORDERED that the order is affirmed, with costs.

In a certification order dated July 27, 2008, the Supreme Court directed theplaintiff to file a note of issue within 90 days and warned that failure to comply would result in dismissal of the action pursuant to CPLR 3126.Thus, the certification order had the same effect as a valid 90-day notice pursuant to CPLR 3216( seeVinikour v. Jamaica Hosp.,2 A.D.3d 518, 519, 767 N.Y.S.2d 873;Aguilar v. Knutson,296 A.D.2d 562, 747 N.Y.S.2d 517;Werbin v. Locicero,287 A.D.2d 617, 732 N.Y.S.2d 37).Having received such notice, the plaintiff was required either to file a timely note of issue or move pursuant to CPLR 2004, before the default date, for an extension of time within which to comply ( seeBenitez v. Mutual of Am. Life Ins. Co.,24 A.D.3d 708, 808 N.Y.S.2d 698;Bokhari v. Home Depot, U.S.A.,4 A.D.3d 381, 771 N.Y.S.2d 395;McKinney v. Corby,295 A.D.2d 580, 581, 744 N.Y.S.2d 882).The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

An action dismissed pursuant to CPLR 3216 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action ( seePicot v. City of New York,50 A.D.3d 757, 855 N.Y.S.2d 237;Sapir v. Krause, Inc.,8 A.D.3d 356, 356-357, 777 N.Y.S.2d 766;Lopez v. Imperial Delivery Serv.,282 A.D.2d 190, 197, 725 N.Y.S.2d 57).Here the plaintiff failed to demonstrate the merits of his legal malpractice action, which alleged that the defendants were negligent in failing to pursue a strict products liabilityclaim against the manufacturer of a phacoemulsification unit utilized during the plaintiff's cataract surgery.Notably, the record is devoid of any expert medical evidence establishing the merits of the products liability claim, and there is no other showing that the plaintiff would have succeeded on such a claim ( seeN.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine,45 N.Y.2d 730, 732, 408 N.Y.S.2d 475, 380 N.E.2d 302;Matera v. Catanzano,161 A.D.2d 687, 688, 555 N.Y.S.2d 823;see alsoIdeal Steel Supply Corp. v. Beil,55 A.D.3d 544, 865 N.Y.S.2d 299;Payette v. Rockefeller Univ.,220 A.D.2d 69, 74, 643 N.Y.S.2d 79).Accordingly...