Rodriguez v. Diallo
| Decision Date | 19 August 2020 |
| Docket Number | 2019–0455,Index No. 706545/14 |
| Parties | Rosaelia RODRIGUEZ, et al., Appellants, v. Thierno H. DIALLO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
186 A.D.3d 770
127 N.Y.S.3d 269 (Mem)
Rosaelia RODRIGUEZ, et al., Appellants,
v.
Thierno H. DIALLO, Respondent.
2019–0455
Index No. 706545/14
Supreme Court, Appellate Division, Second Department, New York.
Submitted—February 27, 2020
August 19, 2020
Jeffrey H. Schwartz, Brooklyn, NY, for appellants.
James F. Butler, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for respondent.
REINALDO E. RIVERA, J.P., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered September 27, 2018. The order, insofar as appealed from, granted the defendant's motion pursuant to CPLR 3216 to dismiss the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On October 7, 2011, the plaintiffs allegedly were injured in a motor vehicle accident in Queens County. On September 14, 2014, the plaintiffs commenced this personal injury action against the defendant, who owned and operated the other vehicle involved in the accident. On November 7, 2017, pursuant to CPLR 3216(b)(3), the defendant served the plaintiffs with a 90–day demand to resume the prosecution of the action and to serve and file a note of issue. The plaintiffs did not serve and file a note of issue and did not move to vacate the 90–day demand or to extend the 90–day period. Accordingly, in February 2018, the defendant moved pursuant to CPLR 3216 to dismiss the complaint. The plaintiffs opposed the motion and cross-moved, inter alia, pursuant to CPLR 3126 for an order of preclusion, asserting that the defendant had not appeared for his deposition. In an order entered September 27, 2018, the Supreme Court granted the defendant's motion and denied the plaintiffs' cross motion. The plaintiffs appeal from so much of the order as granted the defendant's motion.
Where, as here, a plaintiff has been served with a 90–day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the...
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