| McDonald v Montefiore Med. Ctr. |
| 2009 NY Slip Op 02249 [60 AD3d 547] |
| March 24, 2009 |
| Appellate Division, First Department |
| Diana McDonald, Appellant, v Montefiore Medical Centeret al., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered October 26, 2007, whichgranted defendants' motions to dismiss the complaint for failure to prosecute, and deniedplaintiff's cross motion to vacate or extend the CPLR 3216 notice served by the court,unanimously affirmed, without costs.
The subject notice (in which the court crossed out the number 90 and inserted the number120) was issued after the fifth pre-note of issue conference and sixth pre-note of issue orderpertaining to disclosure. While plaintiff's attorney offered some compelling personal reasons forthe general pre-notice delay, the only specific excuse he gave, in an affirmation submitted afterthe 120-day period had already run, for not being able to meet the 120-day deadline was hisoffice's relocation during the 120-day period. Such excuse did not demonstrate good cause forthe requested extension of the already extended notice. While plaintiff contends that defendantswere themselves noncompliant with the prior disclosure orders, and that such noncompliancewas preventing her from filing a note of issue, she had her remedies during the lengthy period ofgeneral delay (CPLR 3124, 3126), and no basis exists to disturb the motion court's finding thatplaintiff's laxity and delay were "wanton." Concur—Saxe, J.P., Friedman, Sweeny,Renwick and Freedman, JJ.