Sharpe v. Osorio
Decision Date | 15 August 2005 |
Docket Number | 2005-01387.,2005-01414. |
Citation | 800 N.Y.S.2d 213,2005 NY Slip Op 06410,21 A.D.3d 467 |
Parties | YVONNE SHARPE, Respondent, v. ROBERT OSORIO et al., Appellants. |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the defendants.
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 move, before the default date, either to vacate the notice or to extend the 90-day period (see DeVore v. Lederman, 14 AD3d 648, 649 [2005]; Walters v. Hoboken Wood Flooring Corp., 6 AD3d 696, 697 [2004]; Estate of Hamilton v. Nassau Suffolk Home Health Care, 1 AD3d 474 [2003]). The plaintiff did neither. Thus, in order to avoid dismissal, she was required to provide a justifiable excuse for her delay and to demonstrate a meritorious cause of action (see CPLR 3216 [e]; Estate of Hamilton v. Nassau Suffolk Home Health Care, supra; Aguilar v. Knutson, 296 AD2d 562 [2002]; Werbin v. Locicero, 287 AD2d 617, 618 [2001]). Again, the plaintiff did neither. The plaintiff failed to provide a justifiable excuse for the extensive delay in prosecuting this action and her submission included neither a showing of merit with respect to liability by one with personal knowledge of the facts, as it must (see Garcia v. Roopnarine, 18 AD3d 607 [2005]; Tietz v. Blatt, 280 AD2d 469 [2001]; Duqmaq v. Stewart, 137 AD2d 653 [1988]), nor evidentiary proof that she sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident, as is...
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...to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue ( see Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213; DeVore v. Lederman, 14 A.D.3d 648, 649, 789 N.Y.S.2d 507; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 382, 771 N.Y.S.2d 39......
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...within which to serve and file a note of issue ( see Fenner v. County of Nassau, 80 A.D.3d at 555, 914 N.Y.S.2d 653; Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213). The plaintiff did neither. Thus, in order to avoid dismissal, the plaintiff was required to demonstrate a justifiable......