Stallone v. Richard

• Decision Date: 01 May 2012
• Citation: 95 A.D.3d 875,2012 N.Y. Slip Op. 03437,943 N.Y.S.2d 225
• Parties: Frank M. STALLONE, appellant, v. Joseph RICHARD, et al., defendants,Mary Richard, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03437
943 N.Y.S.2d 225
95 A.D.3d 875

Frank M. STALLONE, appellant,
v.
Joseph RICHARD, et al., defendants,Mary Richard, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 1, 2012.

[943 N.Y.S.2d 226]

Garcia & Stallone, Deer Park, N.Y. (Karl Zamurs of counsel), for appellant.

Jacobson & Schwartz, LLP, Jericho, N.Y. (Henry J. Cernitz of counsel), for respondents.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered May 2, 2011, which granted that branch of the motion of the defendants Mary Richard and James Richard which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them and denied his cross motion, in effect, to vacate his default in timely filing a note of issue and to extend his time to file a note of issue.

ORDERED that the order is affirmed, with costs.

A certification order of the Supreme Court dated July 16, 2010, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90–day notice pursuant to CPLR 3216 ( see Fenner v. County of Nassau, 80 A.D.3d 555, 914 N.Y.S.2d 653; Sicoli v. Sasson, 76 A.D.3d 1002, 1003, 908 N.Y.S.2d 100; Rodriguez v. Five Towns Nissan, 69 A.D.3d 833, 834, 892 N.Y.S.2d 768; Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 851 N.Y.S.2d 209). Having received a 90–day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time 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 excuse for his failure to comply with the certification order and the existence of a potentially meritorious cause of action ( see CPLR 3216[e]; Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460; Rodriguez v. Five Towns Nissan, 69 A.D.3d at 834, 892 N.Y.S.2d 768; Sharpe v. Osorio, 21 A.D.3d at 468, 800...