Picot v. City of New York

Decision Date08 April 2008
Docket Number2007-01524.
Citation2008 NY Slip Op 03185,50 A.D.3d 757,855 N.Y.S.2d 237
PartiesCLEOMIE PICOT, Appellant, v. CITY OF NEW YORK et al., Defendants, and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Ordered that the order is affirmed, with costs.

Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff was required to file a note of issue in compliance with the notice or to move, before the default date, either to vacate the notice or to extend the 90-day period (seeSharpe v Osorio,21 AD3d 467, 468[2005];Walters v Hoboken Wood Flooring Corp.,6 AD3d 696, 697[2004]).The plaintiff attempted to file a note of issue before the default date, but the note of issue was properly rejected by the Supreme Court because she failed to file a request for judicial intervention (see22 NYCRR 202.6 [a]).Since the plaintiff failed to properly respond to the 90-day notice within the allotted period of time, in order to avoid dismissal she was required to demonstrate both a justifiable excuse for the delay and the existence of a meritorious cause of action (seeCPLR 3216 [e];Estate of Hamilton v Nassau Suffolk Home Health Care,1 AD3d 474[2003];Aguilar v Knutson,296 AD2d 562[2002];Werbin v Locicero,287 AD2d 617, 618[2001]).The plaintiff's excuse for her failure to comply with the 90-day notice was inadequate and she offered no excuse for her inordinate delay in the prosecution of this action (seeBaczkowski v Collins Constr. Co.,89 NY2d 499, 504-505[1997];Ovchinnikov v Joyce Owners Corp.,43 AD3d 1124, 1126-1127[2007];Salerno v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr.,88 AD2d 637, 638[1982]).Furthermore, the plaintiff failed to submit evidentiary proof in admissible form sufficient to demonstrate the existence of a meritorious cause of action (seeMosberg v Elahi,80 NY2d 941, 942[1992];Salch v Paratore,60 NY2d 851, 852[1983];Serby v Long...

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19 cases
  • Byers v. Winthrop Univ. Hosp.
    • United States
    • New York Supreme Court
    • June 29, 2011
    ...869 (2d Dept. 2010); Frazzetta v. P.C. Celano Contracting, 54 A.D.3d 806, 864 N.Y.S.2d 482 (2d Dept. 2008); Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237 (2d Dept. 2008); Serby v. Long Island Jewish Medical Center, 34 A.D.3d 441, 824 N.Y.S.2d 119 (2d Dept. 2006). The requiremen......
  • Cope v. Barakaat
    • United States
    • New York Supreme Court — Appellate Division
    • November 1, 2011
    ...cause of action ( see CPLR 3216[e]; Dominguez v. Jamaica Med. Ctr., 72 A.D.3d 876, 898 N.Y.S.2d 869; Picot v. City of New York, 50 A.D.3d 757, 757–758, 855 N.Y.S.2d 237; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119). The plaintiff failed to tender a justifiable excuse......
  • Lee v. Rad
    • United States
    • New York Supreme Court — Appellate Division
    • October 7, 2015
    ...justifiable excuse for the delay and the existence of a potentially meritorious cause of action (see CPLR 3216[e] ; Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237 ; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119 ; Estate of Hamilton v. Nassau Suffolk Home He......
  • Dominguez v. Jamaica Med. Ctr.
    • United States
    • New York Supreme Court — Appellate Division
    • April 20, 2010
    ...the plaintiff was required to show a justifiable excuse for the delay and a meritorious cause of action ( see Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119; Matter of Hamilton v. Nassau Suffolk Home Health Car......
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