Parkin v Ederer

2006 NY Slip Op 02180

Decided on March 21, 2006

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 21, 2006
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT W. SCHMIDT, J.P.
STEPHEN G. CRANE
GABRIEL M. KRAUSMAN
PETER B. SKELOS
ROBERT J. LUNN, JJ.
2004-10753
2005-02878






Eric H. Green, New York, N.Y. (Marc Gertler and Elliot B. Pasik
of counsel), for appellants.
Loccisano & Larkin (Mauro Goldberg & Lilling LLP, Great
Neck, N.Y. [Caryn L. Lilling and
Matthew W. Naparty] of counsel), for
respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Burke, J.), dated November 9, 2004, which denied their motion, inter alia, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, restore the action to the active calendar, and extend their time to file a note of issue, and (2) an order of the same court dated February 1, 2005, which denied their motion for leave to reargue their prior motion.

ORDERED that the appeal from the order dated February 1, 2005, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated November 9, 2004, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

By conditional order of dismissal dated February 4, 2004, the Supreme Court directed the plaintiffs to file a note of issue no later than June 2, 2004, and warned that the failure to timely file the note of issue would result in the dismissal of the complaint pursuant to CPLR 3216. When the plaintiffs failed to either timely file a note of issue or move to extend the period for doing so, the action was automatically dismissed (see Rezene v Williams, 22 AD3d 656; Giannoccoli v One Cent. Park W. Assoc., 15 AD3d 348; cf. Goldberger v Goldberger, 18 AD3d 499). A case dismissed [*2]pursuant to CPLR 3216 may be restored only 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 Rezene v Williams, supra at 657; Betty v City of New York, 12 AD3d 472, 473; Wechsler v First Unum Life Ins. Co., 295 AD2d 340, 341). The plaintiffs failed to demonstrate a reasonable excuse for their default. Furthermore, the excuse and the exhibits to substantiate it were submitted for the first time in the plaintiffs' reply papers and thus were not properly before the Supreme Court (see CPLR 2214; Osborne v Zornberg, 16 AD3d 643, 645; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355; Sanz v Discount Auto, 10 AD3d 395).
SCHMIDT, J.P., CRANE, KRAUSMAN, SKELOS and LUNN, JJ., concur.

2004-10753 DECISION & ORDER ON MOTION
2005-02878
Scott Parkin, et al., appellants,
v Louis S. Ederer, et al., respondents.
(Index No. 25851/01)

Motion by the appellants on appeals from two orders of the Supreme Court, Suffolk County, dated November 9, 2004, and February 1, 2005, respectively, inter alia, to strike portions of the respondents' brief on the ground that it refers to matter dehors the record and contains scandalous and prejudicial material. By decision and order on motion of this court dated January 10, 2006, that branch of the motion which is to strike portions of the respondents' brief was held in abeyance and referred to the Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the motion which is to strike portions of the respondents' brief is denied.
SCHMIDT, J.P., CRANE, KRAUSMAN, SKELOS and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court