| Ovchinnikov v Joyce Owners Corp. |
| 2007 NY Slip Op 06965 [43 AD3d 1124] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Mikhail Ovchinnikov et al., Respondents, v Joyce OwnersCorp. et al., Appellants. |
—[*1] Geisler & Gabriele, LLP, Garden City, N.Y. (Joseph Randazzo and Lori Marano of counsel),for appellant Sounder Eswar. Becker & D'Agostino, P.C., New York, N.Y. (Michael D'Agostino of counsel), forrespondents.
In a consolidated action, inter alia, to recover damages for personal injuries and medicalmalpractice, the defendants Joyce Owners Corp. and Joyce Management Co. appeal, and thedefendant Sounder Eswar separately appeals, as limited by their respective briefs, from so muchof an order of the Supreme Court, Queens County (Price, J.), entered June 13, 2006, as deniedtheir respective motions pursuant to CPLR 3216 to dismiss the complaint insofar as assertedagainst them for failure to prosecute, and granted the plaintiffs' cross motion to extend the time tofile a note of issue.
Ordered that the order is reversed, on the law and in the exercise of discretion, with one billof costs, the motions to dismiss the complaint are granted, and the cross motion is denied.
On December 16, 1994 the injured plaintiff Mikhail Ovchinnikov tripped and fell on stairsinside the parking garage of a building owned and managed by the defendants Joyce OwnersCorp. and Joyce Management Co. (hereinafter the Joyce defendants). Following the accident, theinjured plaintiff was taken to LaGuardia Hospital, where the defendant Sounder Eswar [*2]performed a closed reduction procedure on his fractured left wrist.In January 1996 the injured plaintiff and his wife commenced an action against Eswar seeking torecover damages, inter alia, for medical malpractice. The plaintiffs subsequently commenced asecond action in December 1997 to recover damages for personal injuries against the Joycedefendants, and the two actions were thereafter consolidated. As of May 2005 the plaintiffs hadyet to serve or file a note of issue.
On May 11, 2005, more than nine years after the commencement of the action against him,Eswar served the plaintiffs with a 90-day notice pursuant to CPLR 3216, requesting them toresume prosecution of the action. The Joyce defendants also served the plaintiffs with a 90-daynotice on or about May 20, 2005. Although the plaintiffs allege that they attempted to file a noteof issue placing the action on the trial calendar on or about August 9, 2005, the note of issue wasrejected for filing, apparently because the actions had been marked "disposed," and the plaintiffshad not moved to restore the action to active status. On August 16, 2005 the plaintiffs also filed amotion to extend their time to file a note of issue, but according to the plaintiffs, the motion wassubsequently rejected and never decided. About seven months later, Eswar moved for an orderpursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him, and the Joycedefendants separately moved for similar relief. In support of their respective motions, thedefendants alleged that the actions against them had, in actuality, been dismissed due to theplaintiffs' failure to comply with a compliance conference order dated October 23, 2000,requiring the plaintiffs to file a note of issue within 90 days, and that they had served 90-daydemands in May 2005 because no order dismissing the action appeared in the court file. In June2006 the plaintiffs cross-moved to extend their time to file a note of issue, claiming that they hadnever been served with the October 2000 compliance conference order, and that they hadattempted to comply with the defendants' 90-day demands by preparing the note of issue whichwas rejected for filing and the August 2005 motion which was also rejected and never decided.The Supreme Court denied the defendants' respective motions, and granted the plaintiffs' crossmotion. We reverse.
Contrary to the defendants' contentions, the Supreme Court could not have properlydismissed the actions for the plaintiffs' failure to comply with the October 23, 2000 complianceconference order. Although a compliance conference order which directs a plaintiff to file a noteof issue, and warns that the failure to do so will result in dismissal of the action, may constitute avalid 90-day notice pursuant to CPLR 3216 (see Bowman v Kusnick, 35 AD3d 643 [2006]; Hoffman v Kessler, 28 AD3d 718[2006]), here the plaintiffs' counsel was not present at the October 2000 compliance conference,and there is no evidence that the compliance conference order was ever properly served upon theplaintiffs.
However, the Supreme Court should have dismissed the actions based upon the plaintiffs'failure to comply with the 90-day notices served by the defendants in May 2005. Where a party isserved with a 90-day notice pursuant to CPLR 3216, it is incumbent upon that party to complywith the notice by filing a note of issue or by moving, before the default date, to vacate the noticeor extend the 90-day period (see Serby vLong Is. Jewish Med. Ctr., 34 AD3d 441 [2006]; Randolph v Cornell, 29 AD3d 557 [2006]; C&S Realty, Inc. v Soloff, 22 AD3d515 [2005]; Chaudhry vZiomek, 21 AD3d 922 [2005]). The plaintiffs did not file a note of issue before thedefault date set by the 90-day notices, and their August 2005 motion for an extension wasrejected without being decided. Since the plaintiffs thus failed to properly respond to the 90-daynotices within the allotted period of time, in order to avoid dismissal they were required todemonstrate both a justifiable excuse for the delay and the existence of a meritorious cause ofaction (see CPLR 3216; Serby vLong Is. Jewish Med. Ctr., 34 AD3d 441 [2006]; Randolph v Cornell, 29 AD3d 557 [2006]; Parkin v Ederer, 27 AD3d 633[2006]; Chaudhry v Ziomek, [*3]21 AD3d 922 [2005]).Although the plaintiffs' August 2005 motion was rejected, they took no further steps to obtain anextension of time to file a note of issue until June 2006, when they responded to the defendants'motions to dismiss by filing the cross motion now under review. The plaintiffs offered no excuseto justify their extensive delay in seeking an extension, or their lengthy delays in prosecuting thisaction (see Harrington v Toback, 34AD3d 640 [2006]). Moreover, the plaintiffs failed to demonstrate the existence of ameritorious malpractice cause of action against Eswar (see Mosberg v Elahi, 80 NY2d941, 942 [1992]; Salch v Paratore, 60 NY2d 851, 852 [1983]; Serby v Long Is. Jewish Med. Ctr., 34AD3d 441 [2006]; Randolph vCornell, 29 AD3d 557 [2006]; Burke v Klein, 269 AD2d 348 [2000]).
Accordingly, the defendants' respective motions to dismiss the complaint should have beengranted, and the plaintiffs' cross motion to extend the time to file a note of issue should havebeen denied. Rivera, J.P., Krausman, Florio, Carni and Balkin, JJ., concur.