| Koehler v Sei Young Choi |
| 2008 NY Slip Op 01921 [49 AD3d 504] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Carol Koehler, Appellant-Respondent, v Sei Young Choi,Respondent-Appellant, and Family Services, Inc., Respondent. |
—[*1] Rubert & Gross, P.C., New York, N.Y. (Soledad Rubert of counsel), forrespondent-appellant. Lewis & Greer, P.C., Poughkeepsie, N.Y. (J. Scott Greer of counsel), forrespondent.
In an action, inter alia, to recover damages for battery, the plaintiff appeals from so much ofan order of the Supreme Court, Dutchess County (Pagones, J.), dated June 29, 2007, as grantedthe motion of the defendant Family Services, Inc., pursuant to CPLR 3216 to dismiss thecomplaint insofar as asserted against it for failure to prosecute, and the defendant Sei YoungChoi cross-appeals, as limited by his brief, from so much of the same order as denied that branchof his motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as assertedagainst him for failure to prosecute and granted the plaintiff's cross motion to extend the time toserve and file a note of issue.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs payable by the plaintiff to the defendant Family Services, Inc., and one bill of costspayable by the defendant Sei Young Choi to the plaintiff.
The defendant Family Services, Inc. (hereinafter Family Services), served the plaintiff,pursuant to CPLR 3216, with a 90-day notice dated October 17, 2006, which the plaintiffreceived on October 18, 2006. The defendant Sei Young Choi did not serve his own 90-daynotice. After the [*2]90-day period for serving and filing a note ofissue had expired, Family Services and Sei Young Choi separately moved, inter alia, pursuant toCPLR 3216 to dismiss the complaint insofar as asserted against each of them. In response, theplaintiff cross-moved to extend her time to serve and file a note of issue. The Supreme Courtgranted Family Services's motion but, among other things, denied that branch of Choi's motionwhich was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him. Thecourt granted the plaintiff's cross motion to extend the time to serve and file a note of issue.
The plaintiff failed to file a note of issue or to move, before the default date, to vacate the90-day notice or to extend the 90-day period for service and filing of a note of issue. She failed todemonstrate either a justifiable excuse for the delay in complying with the 90-day notice or ameritorious cause of action insofar as asserted against Family Services—the party whichserved the notice (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89NY2d 499 [1997]; Zito vJastremski, 35 AD3d 458 [2006]). The plaintiff's only excuse, that discovery had notbeen completed, was insufficient, since she failed to adequately explain her own neglect incomplying with her outstanding discovery obligations (see Levin v Levin, 256 AD2d447, 448 [1998]; Olshansky v Lutheran Med. Ctr., 211 AD2d 772, 773 [1995]).Furthermore, the conclusory allegations contained in the verified complaint and the plaintiff'saffidavit were insufficient to show a meritorious cause of action insofar as asserted againstFamily Services (see Lugauer v ForestCity Ratner Co., 44 AD3d 829, 830 [2007]; Carnegie v J.P. Phillips, Inc., 28 AD3d 599, 600 [2006]).Accordingly, under the circumstances of this case, the Supreme Court providently exercised itsdiscretion in granting the motion of Family Services to dismiss the complaint insofar as assertedagainst it for failure to prosecute, upon finding that the plaintiff failed to comply with the 90-daynotice.
Since Choi did not serve his own 90-day notice, the Supreme Court properly denied thatbranch of his separate motion which was to dismiss the complaint insofar as asserted against himfor the plaintiff's failure to comply with the 90-day notice served by Family Services (seeCPLR 3216 [b] [3]; Walters vHoboken Wood Flooring Corp., 6 AD3d 696, 697 [2004]; Cohen v Silverman,281 AD2d 445, 446-447 [2001]; Ubriaco v Mather Mem. Hosp., 209 AD2d 404[1994]).
The parties' remaining contentions are without merit. Mastro, J.P., Fisher, Florio, Angiolilloand Dickerson, JJ., concur.