Sharpe v. Osorio

Decision Date15 August 2005
Docket Number2005-01387.,2005-01414.
Citation800 N.Y.S.2d 213,2005 NY Slip Op 06410,21 A.D.3d 467
PartiesYVONNE SHARPE, Respondent, v. ROBERT OSORIO et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Ordered that the order dated October 22, 2004, is reversed insofar as appealed from, on the law, the order dated December 10, 2004, is vacated, and that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3216 for want of prosecution is granted; and it is further,

Ordered that the appeal from the order dated December 10, 2004, is dismissed as academic; and it is further,

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...

To continue reading

Request your trial
12 cases
  • Byers v. Winthrop Univ. Hosp.
    • United States
    • New York Supreme Court — Appellate Division
    • November 21, 2012
    ...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;DeVore v. Lederman, 14 A.D.3d 648, 649, 789 N.Y.S.2d 507). In light of the plaintiff's failure to do either, the complai......
  • Fenner v. County of Nassau
    • United States
    • New York Supreme Court — Appellate Division
    • January 11, 2011
    ...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......
  • Bhatti v. Empire Realty Assocs., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • December 26, 2012
    ...875, 876, 943 N.Y.S.2d 225;Davis v. Cardiovascular Consultants of Long Is., P.C., 65 A.D.3d 1076, 1077, 886 N.Y.S.2d 61;Sharpe v. Osorio, 21 A.D.3d 467, 468, 800 N.Y.S.2d 213;Giannoccoli v. One Cent. Park W. Assoc., 15 A.D.3d 348, 348–349, 790 N.Y.S.2d 159;DeVore v. Lederman, 14 A.D.3d 648,......
  • Stallone v. Richard
    • United States
    • New York Supreme Court — Appellate Division
    • May 1, 2012
    ...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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT