| Picot v City of New York |
| 2008 NY Slip Op 03185 [50 AD3d 757] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Cleomie Picot, Appellant, v City of New York et al.,Defendants, and New York City Health and Hospitals Corporation et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, AmyLondon, and John Hogrogian of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice and lack of informedconsent, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.),dated December 15, 2006, which granted the motion of the defendants New York City Healthand Hospitals Corporation, Coney Island Hospital, and Teresa Brevetti pursuant to CPLR 3216 todismiss the complaint insofar as asserted against them for failure to prosecute.
Ordered that the order is affirmed, with costs.
Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff was requiredto file a note of issue in compliance with the notice or to move, before the default date, either tovacate the notice or to extend the 90-day period (see Sharpe v Osorio, 21 AD3d 467, 468 [2005]; Walters v Hoboken Wood FlooringCorp., 6 AD3d 696, 697 [2004]). The plaintiff attempted to file a note of issue beforethe default date, but the note of issue was properly rejected by the Supreme Court because shefailed to file a request for judicial intervention (see 22 NYCRR 202.6 [a]). Since theplaintiff failed to properly respond to the 90-day notice within the allotted period of time, inorder to avoid dismissal she was required to demonstrate both a justifiable excuse for the delayand the existence of a meritorious cause of action (see CPLR 3216 [e]; Estate of Hamilton v Nassau Suffolk [*2]Home Health Care, 1 AD3d 474 [2003]; Aguilar vKnutson, 296 AD2d 562 [2002]; Werbin v Locicero, 287 AD2d 617, 618 [2001]).The plaintiff's excuse for her failure to comply with the 90-day notice was inadequate and sheoffered no excuse for her inordinate delay in the prosecution of this action (see Baczkowski vCollins Constr. Co., 89 NY2d 499, 504-505 [1997]; Ovchinnikov v Joyce Owners Corp., 43 AD3d 1124, 1126-1127[2007]; Salerno v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr., 88AD2d 637, 638 [1982]). Furthermore, the plaintiff failed to submit evidentiary proof inadmissible form sufficient to demonstrate the existence of a meritorious cause of action (seeMosberg v Elahi, 80 NY2d 941, 942 [1992]; Salch v Paratore, 60 NY2d 851, 852[1983]; Serby v Long Is. Jewish Med.Ctr., 34 AD3d 441 [2006]; Randolph v Cornell, 29 AD3d 557 [2006]; Burke v Klein,269 AD2d 348, 348-349 [2000]). Accordingly, the respondents' motion to dismiss the complaintinsofar as asserted against them was properly granted. Skelos, J.P., Santucci, Covello, McCarthyand Chambers, JJ., concur.