Opinion
5619 Index 13908/99
02-06-2018
Ivalisse BUSTAMANTE, etc., et al., Plaintiffs–Appellants, v. GREEN DOOR REALTY CORP., et al., Defendants–Respondents.
Richard Janowitz, P.C., Mineola (Richard Janowitz of counsel), for appellants. Silverson, Pareres & Lombardi LLP, New York (Joseph Marchese of counsel), for respondents.
Richard Janowitz, P.C., Mineola (Richard Janowitz of counsel), for appellants.
Silverson, Pareres & Lombardi LLP, New York (Joseph Marchese of counsel), for respondents.
Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 7, 2016, which denied plaintiffs' motion to, among other things, extend the time to file the note of issue, and granted defendants' cross motion to dismiss the action for, among other things, failure to prosecute, unanimously affirmed, without costs.
On a prior appeal, this Court granted renewal on plaintiffs' motion to vacate a default entered against them, granted plaintiffs' motion to vacate, and reinstated the complaint "in the interest of justice and substantive fairness" ( Bustamante v. Green Door Realty Corp. , 69 A.D.3d 521, 522, 893 N.Y.S.2d 57 [1st Dept. 2010] ). Plaintiffs, however, have squandered their second chance at litigation. Plaintiffs failed to comply with the motion court's demand, made pursuant to CPLR 3216, that they serve and file a note of issue by a date beyond the statutory 90–day period. Rather than comply, after the period set forth by the court expired, plaintiffs moved to extend the time to file a note of issue, offering no explanation for not having moved earlier (see Grant v. City of New York , 17 A.D.3d 215, 793 N.Y.S.2d 35 [1st Dept. 2005] ).
Moreover, plaintiffs failed to demonstrate a justifiable excuse for noncompliance with the motion court's CPLR 3126 notice (see id. ; Pryce v. Montefiore Med. Ctr. , 114 A.D.3d 594, 595, 981 N.Y.S.2d 67 [1st Dept. 2014] ). Plaintiffs failed to produce four plaintiffs for depositions, in defiance of five court orders and a stipulation. Plaintiffs' excuse—that it was difficult to locate some of the plaintiffs—was conclusory and unreasonable, as they failed to identify what efforts were made, when they were undertaken, or when counsel lost touch with these plaintiffs (see Touray v. Munoz , 96 A.D.3d 623, 946 N.Y.S.2d 860 [1st Dept. 2012] ; Reidel v. Ryder TRS, Inc. , 13 A.D.3d 170, 786 N.Y.S.2d 487 [1st Dept. 2004] ).