Picot v. City of New York, 2007-01524.
Citation | 2008 NY Slip Op 03185,50 A.D.3d 757,855 N.Y.S.2d 237 |
Decision Date | 08 April 2008 |
Docket Number | 2007-01524. |
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 (see Sharpe 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 (see 22 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 (see CPLR 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 (see Baczkowski 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 (see Mosberg v Elahi, 80 NY2d 941, 942 [1992]; Salch v Paratore, 60 NY2d 851, 852 [1983]; Serby v Long...
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