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King-Valls v. Mendel

Appellate Division of the Supreme Court of New York, Second Department
Mar 31, 2003
303 A.D.2d 721 (N.Y. App. Div. 2003)

Opinion

2002-06098

Submitted March 5, 2003.

March 31, 2003.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (LaTorella, J.), dated May 15, 2002, which denied their motion, inter alia, for an extension of time to file a note of issue and granted the defendant's cross motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

Abraham J. Katz, Whitestone, N.Y., for appellants.

Furey Furey, P.C., Hempstead, N.Y. (Susan Weihs Darlington of counsel), for respondent.

Before: ANITA R. FLORIO, J.P., SONDRA MILLER, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

After the plaintiffs received a 90-day notice, they were required either to timely file a note of issue or move pursuant to CPLR 2004 before the default date for an extension of time within which to comply (see Aguilar v. Knutson, 296 A.D.2d 562). The plaintiffs did neither.

To avoid dismissal upon the defendant's cross motion, the plaintiffs were required to show a justifiable excuse for the delay and a meritorious cause of action (see CPLR 3216[e]; Werbin v. Locicero, 287 A.D.2d 617). The plaintiffs failed to satisfy either prong of the test.

FLORIO, J.P., S. MILLER, TOWNES and MASTRO, JJ., concur.


Summaries of

King-Valls v. Mendel

Appellate Division of the Supreme Court of New York, Second Department
Mar 31, 2003
303 A.D.2d 721 (N.Y. App. Div. 2003)
Case details for

King-Valls v. Mendel

Case Details

Full title:PATRICIA KING-VALLS, ET AL., appellants, v. BORIS MENDEL, ETC., respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 31, 2003

Citations

303 A.D.2d 721 (N.Y. App. Div. 2003)
756 N.Y.S.2d 875

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