Sapir v. Krause, Inc.
Decision Date | 07 June 2004 |
Docket Number | 2003-07108. |
Citation | 2004 NY Slip Op 04692,777 N.Y.S.2d 766,8 A.D.3d 356 |
Parties | MARK SAPIR et al., Appellants, v. KRAUSE, INC., et al., Respondents. |
Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
In a certification conference order entered March 26, 1998, the Supreme Court directed the plaintiffs to serve and file a note of issue within 90 days, and warned that the failure to comply may serve as a basis for dismissal pursuant to CPLR 3216. Counsel for both parties signed the order. This had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Apicella v Estate of Apicella, 305 AD2d 621 [2003]; Aguilar v Knutson, 296 AD2d 562 [2002]; Werbin v Locicero, 287 AD2d 617 [2001]). Thus, having received a 90-day notice, the plaintiffs were required either to file a note of issue within 90 days or to move pursuant to CPLR 2004 before the default date for an extension of time within which to comply (see Apicella v Estate of Apicella, supra; Aguilar v Knutson, supra; Werbin v Locicero, supra). The plaintiffs did neither, and the action was subsequently dismissed pursuant to CPLR 3216.
A case 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 that a meritorious action exists (see Lopez v Imperial Delivery Serv., 282 AD2d 190, 197 [2001]). The plaintiffs failed to offer a reasonable excuse to justify their lengthy delay after the 90-day notice in moving for leave to file a note of issue (cf. Conklin v Physician's Hosp., 237 AD2d 401 [1997]). Accordingly, their motion was properly denied.
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