Appellate Division of the Supreme Court of New York, 2004

Bokhari v. Home Depot U.S.A., Inc.

Appellate Division of the Supreme Court of New York · Decided February 9, 2004

4 A.D.3d 381; 771 N.Y.S.2d 395; 2004 N.Y. App. Div. LEXIS 1312

Cases that cite this one

26 later published cases cite this decision. The 25 that cite it most often are listed here.

Stroll v. Long Island Jewish Medical Center (Appellate Division of the Supreme Court of New York 2017)
Sicoli v. Homayoun Nazarian Sasson (Appellate Division of the Supreme Court of New York 2010)
Michaels v. Sunrise Building & Remodeling, Inc. (Appellate Division of the Supreme Court of New York 2009)
C&S Realty, Inc. v. Soloff (Appellate Division of the Supreme Court of New York 2005)
Misun Lee v. Rad (Appellate Division of the Supreme Court of New York 2015)
Ramon v. Zangari (Appellate Division of the Supreme Court of New York 2014)
Ramon v. Zangari (Appellate Division of the Supreme Court of New York 2014)
Griffith v. Wray (Appellate Division of the Supreme Court of New York 2013)
Griffith v. Wray (Appellate Division of the Supreme Court of New York 2013)
Colon v. Papatolis (Appellate Division of the Supreme Court of New York 2012)
Fenner v. County of Nassau (Appellate Division of the Supreme Court of New York 2011)
Gagnon v. Campbell (Appellate Division of the Supreme Court of New York 2011)
Cope v. Barakaat (Appellate Division of the Supreme Court of New York 2011)
Rodriguez v. Five Towns Nissan (Appellate Division of the Supreme Court of New York 2010)
Dominguez v. Jamaica Medical Center (Appellate Division of the Supreme Court of New York 2010)
Palumbo v. Dell (Appellate Division of the Supreme Court of New York 2010)
Sanchez v. Serje (Appellate Division of the Supreme Court of New York 2010)
Davis v. Cardiovascular Consultants of Long Island, P.C. (Appellate Division of the Supreme Court of New York 2009)
Petersen v. Lysaght, Lysaght & Kramer, P.C. (Appellate Division of the Supreme Court of New York 2008)
Felix v. County of Nassau (Appellate Division of the Supreme Court of New York 2008)
Louis v. MTA Long Island Bus Co. (Appellate Division of the Supreme Court of New York 2007)
Sanchez v. Serje (Appellate Division of the Supreme Court of New York 2005)
Benitez v. Mutual of America Life Insurance (Appellate Division of the Supreme Court of New York 2005)
Fraga v. Smithaven Open MRI (Appellate Division of the Supreme Court of New York 2004)
Parker v. Hasem Grocery (Appellate Division of the Supreme Court of New York 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action, inter alia, to recover damages for false arrest and false imprisonment, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated November 18, 2002, as denied his motion, in effect, to vacate the dismissal of the action.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The demand pursuant to CPLR 3216 attached to the compliance conference order dated March 28, 2000, and signed by counsel for all parties, constituted a valid 90-day notice pursuant to CPLR 3216 (see Apicella v Estate of Apicella, 305 AD2d 621 [2003], lv denied 100 NY2d 513 [2003]; Aguilar v Knutson, 296 AD2d 562 [2002]; Flomenhaft v Baron, 281 AD2d 389 [2001]). Contrary to the plaintiffs contention, failure to serve a CPLR 3216 90-day notice by certified or registered mail is a *382procedural irregularity, and, absent a showing of prejudice to a substantial right of the plaintiff, should not result in vacating a dismissal of the action (see Balando v American Opt. Corp., 66 NY2d 750, 751 [1985]; Yi Pao Lu v Scaduto, 303 AD2d 750 [2003]). Here, having received a 90-day notice, the plaintiff was required either to timely file a note of issue or to move, before the default date, to vacate the notice or to extend the 90-day period (see Apicella v Estate of Apicella, supra; Yi Pao Lu v Scaduto, supra; Aguilar v Knutson, supra).

After the plaintiff failed to comply with the demand, the Supreme Court, on its own initiative, dismissed the complaint pursuant to CPLR 3216 on January 19, 2001. Over a year later, the plaintiff moved, in effect, to vacate the dismissal, and was required to establish a reasonable excuse for noncompliance with the demand and a meritorious cause of action (see Sustad v Karagiannis, 305 AD2d 664 [2003]; Vento v Bargain Bilge W., 292 AD2d 596 [2002]; Werbin v Locicero, 287 AD2d 617 [2001]). Since the plaintiff failed to establish a reasonable excuse, the court properly denied his motion, in effect, to vacate the dismissal. Prudenti, RJ., H. Miller, Schmidt and Cozier, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.