Picot v. City of New York
Decision Date | 08 April 2008 |
Docket Number | 2007-01524. |
Citation | 2008 NY Slip Op 03185,50 A.D.3d 757,855 N.Y.S.2d 237 |
Parties | CLEOMIE PICOT, Appellant, v. CITY OF NEW YORK et al., Defendants, and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents. |
Court | New 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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Lee v. Rad
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Dominguez v. Jamaica Med. Ctr.
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