Turman v. Amity OBG Associates, P.C.
| Decision Date | 25 February 1991 |
| Citation | 567 N.Y.S.2d 87,170 A.D.2d 668 |
| Parties | Rosilyn TURMAN, et al., Respondents, v. AMITY OBG ASSOCIATES, P.C., et al., Appellants, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Kelly, Rode, Kelly & Burke, Westbury (Francis J. Tierney, of counsel), for appellants.
John L. Juliano, P.C., East Northport, for respondents.
Before MANGANO, P.J., and BROWN, SULLIVAN, HARWOOD and MILLER, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, etc., the defendants Amity OBG Associates, P.C., G.J. Burres, B.D. Podell and A.J. Rosenman appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), entered June 8, 1989, which denied their motion to dismiss the complaint insofar as it is asserted against them pursuant to CPLR 3216 for failure to prosecute.
ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellants, and the action against the remaining defendant is severed.
Based upon our review of the record, we conclude that the Supreme Court improvidently exercised its discretion in denying the appellants' motion to dismiss the complaint insofar as it is asserted against them pursuant to CPLR 3216 for failure to prosecute.
Having been served with a 90-day demand pursuant to CPLR 3216, it was incumbent upon the plaintiffs to comply with the notice by filing a note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period (see, Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483; Mason v. Simmons, 139 A.D.2d 880, 527 N.Y.S.2d 611). The plaintiffs failed to do so, and, in this regard, we note that their request for a precalendar conference did not satisfy the requirements of CPLR 3126 (see, Meth v. Maimonides Med. Center, 99 A.D.2d 799, 472 N.Y.S.2d 134). As such, the plaintiffs, to avoid the sanction of dismissal, were required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and that they had a meritorious cause of action (see, Papadopoulas v. R.B. Supply Corp., supra; Mason v. Simmons, supra ). Although the plaintiffs' papers submitted in opposition to the motion arguably demonstrate a meritorious cause of action, they failed to demonstrate a reasonable excuse for the default.
The plaintiffs contend that their default...
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Wilson v. Nembhardt
...note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period" (Turman v. Amity OBG Assocs., 170 A.D.2d 668, 567 N.Y.S.2d 87, citing Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483; Mason v. Simmons, 139 A.D.2d 880, 527 N......
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Tierney v. OB-GYN Associates of Ithaca, OB-GYN
...to support this assertion and plaintiffs never complained of defendants' actions until the present motion (see, Turman v. Amity OBG Assocs., 170 A.D.2d 668, 669, 567 N.Y.S.2d 87; Monteferrante v. New York City Fire Dept., 74 A.D.2d 538, 424 N.Y.S.2d 911, aff'd, 53 N.Y.2d 653, 438 N.Y.S.2d 9......
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...both a "justifiable excuse for the delay and a good and meritorious cause of action." CPLR 3216(e); see also Turman v. Amity OBG Assoc., 170 A.D.2d 668, 668-69, 567 N.Y.S.2d 87, 88 (2d Dept.1991) ("plaintiffs, to avoid the sanction of dismissal, were required to demonstrate a justifiable ex......
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Umeze v. Fidelis Care N.Y.
...both a "justifiable excuse for the delay and a good and meritorious cause of action." CPLR 3216 (e); see also Turman v. Amity OBG Assoc., 170 A.D.2d 668, 668-69, 567 N.Y.S.2d 87, 88 (2d Dept. 1991) ("plaintiffs, to avoid the sanction of dismissal, were required to demonstrate a justifiable ......