Steiner v. East Ramapo Central School Dist.

• Decision Date: 03 May 1982
• Parties: Steven STEINER, an Infant, et al., Appellants, v. EAST RAMAPO CENTRAL SCHOOL DISTRICT, Defendant third-party Plaintiff-Respondent; Susan Hanley, an infant over the age of 14 years, by her father and natural guardian, Laurence C. Hanley, third-party Defendant, fourth-party Plaintiff-Respondent; Michael Seligson, sued herein as Michael Seiglson, fourth-party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 778

449 N.Y.S.2d 778

88 A.D.2d 594

Steven STEINER, an Infant, et al., Appellants, v. EAST RAMAPO CENTRAL SCHOOL DISTRICT, Defendant third-party

Plaintiff-Respondent;

Susan Hanley, an infant over the age of 14 years, by her

father and natural guardian, Laurence C. Hanley,

third-party Defendant, fourth-party

Plaintiff-Respondent;

Michael Seligson, sued herein as Michael Seiglson,

fourth-party Defendant-Respondent.

Supreme Court, Appellate Division,

Second Department.

May 3, 1982.

Northrop & Jessop, West Haverstraw (Samuel L. Newman and Leon S. Harris, of counsel), for appellants.

Sichol & Hicks, P. C., Suffern (O'Neil Kelly, Suffern, of counsel), for defendant-third party plaintiff-respondent.

Campbell, Cunnion & O'Connor, Brooklyn (A. Paul Goldblum, Brooklyn, of counsel), for third-party defendant-fourth party plaintiff-respondent.

Before GIBBONS, J. P., and GULOTTA, O'CONNOR and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from two orders of the Supreme Court, Rockland County, both entered January 21, 1981, the first of which granted defendant East Ramapo Central School District's motion to dismiss plaintiffs' complaint for want of prosecution and the second of which denied, as moot, plaintiffs' motion to amend their summons and complaint to add the third and fourth-party defendants as direct defendants in their action.

Orders affirmed, with one bill of $50 costs and disbursements payable by plaintiffs to defendant third-party plaintiff East Ramapo Central School District.

Where a defendant has properly served a 90-day notice pursuant to CPLR 3216 and a plaintiff thereafter fails to file his note of issue and statement of readiness within the 90-day period following the demand, upon defendant's motion to dismiss for want of prosecution, such sanction may be avoided only in the event that the party on whom the demand was served demonstrates (1) a justifiable excuse for the delay, and (2) a good and meritorious cause of action (CPLR 3216, subd. Sortino v. Fisher, 20 A.D.2d 25, 32, 245 N.Y.S.2d 186; Keating v. Smith, 20 A.D.2d 141, 245 N.Y.S.2d 909; Levin v. 40 Realty, Inc., 80 A.D.2d 515, 435 N.Y.S.2d 607; cf. Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275). The record reflects that plaintiffs neither provided an affidavit of merits nor demonstrated a reasonable excuse for their delay in failing to serve and file a note of issue within...