Opinion
2021–04405 Index No. 704557/21
05-17-2023
Shaheem TURNER, appellant, v. FUCHS, COOPERSTEIN AND GREENGOLD, LLC, respondent.
Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Diane K. Toner ], of counsel), for appellant. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY (Paul Lawless of counsel), for respondent.
Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Diane K. Toner ], of counsel), for appellant.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY (Paul Lawless of counsel), for respondent.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered June 15, 2021. The order, insofar as appealed from, granted the defendant's motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In July 2018, the plaintiff commenced this action to recover damages for injuries he alleged he sustained when he tripped and fell on a sidewalk abutting premises owned by the defendant. As is relevant to the appeal, in February 2020, the defendant served a 90–day notice pursuant to CPLR 3216 demanding that the plaintiff resume prosecution of the action or face dismissal. Thereafter, in March 2021, the defendant moved pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. The plaintiff cross-moved to impose sanctions against the defendant's counsel, contending that the motion to dismiss was frivolous. In an order entered June 15, 2021, the Supreme Court, inter alia, granted the defendant's motion. The plaintiff appeals. Where, as here, a plaintiff has been served with a 90–day demand by the defendant pursuant to CPLR 3216(b)(3), the plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90–day demand period (see Islam v. HPENY Hous. Dev. Fund Co., Inc., 182 A.D.3d 585, 585, 123 N.Y.S.3d 137 ; HSBC Bank USA, N.A. v. Izzo, 177 A.D.3d 648, 649, 109 N.Y.S.3d 886 ). The plaintiff here did neither. Moreover, in opposition to the defendant's motion to dismiss the complaint, the plaintiff was required to demonstrate a justifiable excuse for the failure to timely abide by the 90–day demand, as well as the existence of a potentially meritorious cause of action (see CPLR 3216[e] ; Umeze v. Fidelis Care N.Y., 17 N.Y.3d 751, 929 N.Y.S.2d 67, 952 N.E.2d 1060 ; Angamarca v. 47–51 Bridge St. Prop., LLC, 167 A.D.3d 559, 90 N.Y.S.3d 70 ). Here, the plaintiff failed to assert any excuse or attempt to demonstrate the existence of a potentially meritorious cause of action in opposition to the defendant's motion.
Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. The plaintiff's contention that the 90–day notice was served when the matter was purportedly stayed was improperly raised for the first time in the plaintiff's reply papers on his cross-motion before the Supreme Court, and is not considered by this Court (see State Farm Fire & Cas. Co. v. LiMauro, 103 A.D.2d 514, 521–522, 481 N.Y.S.2d 90 ).
The plaintiff's remaining contentions are improperly raised for the first time on appeal.
DUFFY, J.P., CHAMBERS, CHRISTOPHER and ZAYAS, JJ., concur.