Appellate Division of the Supreme Court of New York, 2005

C&S Realty, Inc. v. Soloff

Appellate Division of the Supreme Court of New York · Decided October 11, 2005

22 A.D.3d 515; 801 N.Y.S.2d 772

Cases that cite this one

11 later published cases cite this decision.

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)
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)
Byers v. Winthrop University Hospital (Appellate Division of the Supreme Court of New York 2012)
Byers v. Winthrop University Hospital (Appellate Division of the Supreme Court of New York 2012)
Wold v. City of New York (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)
Petersen v. Lysaght, Lysaght & Kramer, P.C. (Appellate Division of the Supreme Court of New York 2008)
Ovchinnikov v. Joyce Owners Corp. (Appellate Division of the Supreme Court of New York 2007)
Bowman v. Kusnick (Appellate Division of the Supreme Court of New York 2006)

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 to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), dated January 4, 2005, which denied its motion, in effect, to vacate the dismissal of the action.

Ordered that the order is affirmed, with costs.

In a certification order dated May 17, 2005, the Supreme Court directed the plaintiff to file a note of issue within 90 days and warned that the action would be “deemed dismissed” if the plaintiff failed to comply. Both parties signed the order. The order had the same effect as a 90-day notice pursuant to CPLR 3216 (see Betty v City of New York, 12 AD3d 472 [2004]; Vinikour v Jamaica Hosp., 2 AD3d 518, 519 [2003]; Aguilar v Knutson, 296 AD2d 562 [2002]; Werbin v Locicero, 287 AD2d 617 [2001]). Having, in effect, received a 90-day notice, the plaintiff was required to either timely file a note of issue or move, before the default date, for an extension of time pursuant to CPLR 2004 (see Bokhari v Home Depot U.S.A., 4 AD3d 381 [2004]; McKinney v Corby, 295 AD2d 580, 581 [2002]). The plaintiff did neither and the action was dismissed pursuant to CPLR 3216 (see Giannoccoli v One Cent. Park W. Assoc., 15 AD3d 348, 349 [2005]; Betty v City of New York, supra at 473).

A case dismissed pursuant to CPLR 3216 may be restored *516only if the plaintiff can demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see Sapir v Krause, Inc., 8 AD3d 356, 356-357 [2004]; Bokhari v Home Depot U.S.A., supra). Here, the plaintiff failed to make that showing. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs motion, in effect, to vacate the dismissal. Cozier, J.P., Santucci, Luciano, Fisher and Covello, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.