| Huger v Cushman & Wakefield, Inc. |
| 2009 NY Slip Op 00344 [58 AD3d 682] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Steve Huger et al., Appellants, v Cushman & Wakefield,Inc., Defendant and Third-Party Plaintiff-Respondent, and Meli Borrelli Associates et al.,Respondents. Nastasi White Inc., Third-PartyDefendant-Respondent. |
—[*1] Martyn, Toher and Martyn, Mineola, N.Y. (Frank P. Toher and Lisa Rossi of counsel), fordefendant third-party plaintiff-respondent. Murray & McCann, Rockville Centre, N.Y. (Joseph D. McCann and Michael J. Trainor ofcounsel), for defendants-respondents Meli Borrelli Associates and Meli-Borrelli Municipal, Inc. Anita Nissan Yehuda, Roslyn Heights, N.Y., for third-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so muchof an order of the Supreme Court, Queens County (Dorsa, J.), dated September 20, 2007, asgranted those branches of the cross motion of the third-party defendant which were to dismissthe complaint, the third-party complaint, and all cross claims pursuant to CPLR 3216.
Ordered that the appeal from so much of the order as granted those branches of the crossmotion which were to dismiss the third-party complaint and all cross claims is dismissed, as theplaintiffs are not aggrieved by that portion of the order (see CPLR 5511); and it isfurther,[*2]
Ordered that the order is affirmed insofar as reviewed;and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
Initially, we note that the plaintiffs' appeal is limited by their notice of appeal to so much ofthe order as granted that branch of the cross motion of the third-party defendant which was todismiss the complaint pursuant to CPLR 3216. Given the limited scope of the plaintiffs' notice ofappeal, their contentions concerning the Supreme Court's denial of their motion are not properlybefore this Court (see Uzzle v NunzieCt. Homeowners Assn., Inc., 55 AD3d 723 [2008]; City of Mount Vernon v MountVernon Hous. Auth., 235 AD2d 516 [1997]).
The Supreme Court correctly granted that branch of the third-party defendant's cross motionwhich was to dismiss the complaint pursuant to CPLR 3216. CPLR 3216 (a) provides that thecourt may dismiss a party's pleading where the party unreasonably fails to serve and file a noteof issue. Certain conditions precedent to dismissal must be met, including that one year haselapsed since joinder of issue, and that the court or the party seeking such relief has served awritten demand for the serving and filing of the note of issue within 90 days (see CPLR3216 [b]). In the event that the party on whom the demand is served fails to serve and file a noteof issue within the prescribed time, the court may dismiss that party's pleading unless that partyshows "a justifiable excuse for the delay and a good and meritorious cause of action" (CPLR3216 [e]). Here, the excuses tendered by the plaintiffs failed to adequately explain their failure totimely serve and file a note of issue.
A compliance conference order dated January 8, 2004, which warned the plaintiffs that thefailure to serve and file a note of issue would result in dismissal of the action, had the sameeffect as a valid 90-day notice pursuant to CPLR 3216 (see Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708 [2005];Giannoccoli v One Cent. Park W.Assoc., 15 AD3d 348 [2005]; Betty v City of New York, 12 AD3d 472 [2004]; Wechsler vFirst Unum Life Ins. Co., 295 AD2d 340 [2002]). Contrary to the plaintiffs' contention,neither that order, nor the order dated December 12, 2005 which extended the deadline for thefiling of the note of issue, mandated that all discovery be complete prior to the serving and filingof the note of issue. Accordingly, even if the defendants engaged in dilatory conduct inresponding to discovery demands, such conduct did not constitute a reasonable excuse for theplaintiffs' failure to respond to the 90-day notice (see McKinney v Corby, 295 AD2d 580[2002]; see also Baczkowski v Collins Constr. Co., 89 NY2d 499, 503-504 [1997];Papadopoulas v R.B. Supply Corp., 152 AD2d 552 [1989]). If the defendants were, infact, impeding discovery, the plaintiffs were not without remedies. For example, they could havemoved for permission to serve and file a conditional note of issue pursuant to 22 NYCRR 202.21(d), to compel disclosure pursuant to CPLR 3124, to strike the defendants' answers pursuant toCPLR 3126 (3), or pursuant to CPLR 2004, prior to the default date, to extend the time to serveand file the note of issue (cf. Petersen vLysaght, Lysaght & Kramer, P.C., 47 AD3d 783 [2008]; Vinikour v Jamaica Hosp., 2 AD3d518 [2003]). However, the plaintiffs failed to avail themselves of any of these options, andinstead waited until 10 months after their latest default to seek another extension of time. Sincethe plaintiffs failed to demonstrate a justifiable excuse for their failure to serve and file the noteof issue within the time limit imposed by the Supreme Court, that branch of the third-partydefendant's cross motion which was to dismiss the complaint pursuant to CPLR 3216 wasproperly granted.
The plaintiffs' remaining contentions are without merit. Skelos, J.P., Santucci, McCarthy andDickerson, JJ., concur.