| Gagnon v Campbell |
| 2011 NY Slip Op 06092 [86 AD3d 623] |
| July 26, 2011 |
| Appellate Division, Second Department |
| Michelle Gagnon, Respondent, v Colleen Campbell,Appellant. |
—[*1]
In an action to recover damages for personal injuries, the defendant appeals, as limited by herbrief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), enteredJune 9, 2010, as granted that branch of the plaintiff's motion which was for leave to renew heropposition to the defendant's motion, inter alia, to dismiss the complaint pursuant to CPLR 3216and the plaintiff's cross motion, in effect, to extend the time to serve and file a note of issue,which had been determined in an order of the same court dated November 28, 2008, and, uponrenewal, in effect, vacated the order dated November 28, 2008, denied the defendant's motion,among other things, to dismiss the complaint, and granted the plaintiff's cross motion, in effect,to extend the time to serve and file a note of issue.
Ordered that the order entered June 9, 2010, is reversed insofar as appealed from, on the law,with costs, and that branch of the plaintiff's motion which was for leave to renew her oppositionto the defendant's motion, inter alia, to dismiss the complaint pursuant to CPLR 3216 and theplaintiff's cross motion, in effect, to extend the time to serve and file a note of issue are denied,and the order dated November 28, 2008, is reinstated.
The defendant served the plaintiff's attorney with a valid 90-day demand pursuant to CPLR3216 on January 9, 2008. Upon receipt of the 90-day demand, the plaintiff was required tocomply with it either by serving and filing a timely note of issue or by moving, before the defaultdate, to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Sanchez v Serje, 78 AD3d1155, 1156 [2010]; Bokhari vHome Depot U.S.A., 4 AD3d 381 [2004]; McKinney v Corby, 295 AD2d 580,581 [2002]). Having failed to pursue any of the foregoing options, the plaintiff was obligated todemonstrate a reasonable excuse for the delay and a potentially meritorious cause of action toavoid the sanction of dismissal (see CPLR 3216 [e]; Dominguez v Jamaica Med. Ctr., 72 AD3d 876 [2010]; Picot v City of New York, 50 AD3d757, 758 [2008]; McKinney v Corby, 295 AD2d at 581; Flomenhaft vBaron, 281 AD2d 389 [2001]). In renewing her opposition to the defendant's motion todismiss the complaint pursuant to CPLR 3216, the plaintiff failed to offer new facts not offeredon the prior motion that would change the prior determination (see CPLR 2221 [e] [2];Jackson Hgts. Care Ctr., LLC vBloch, 39 AD3d 477, 480 [2007]). The plaintiff failed to submit any medical evidencedemonstrating that she sustained a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject motor vehicle accident (see Louis v MTA Long Is. Bus Co., 44 AD3d 628 [2007]; Parks v Miclette, 41 AD3d 1107,1110 [2007]; Berktas v McMillian,40 AD3d 563, 563-564 [2007]). Therefore, the plaintiff failed [*2]to demonstrate that she has a potentially meritorious cause ofaction.
Accordingly, that branch of the plaintiff's motion which was for leave to renew heropposition to the defendant's motion to dismiss the action and the plaintiff's cross motion, ineffect, to extend the time to serve and file a note of issue, should have been denied. Rivera, J.P.,Angiolillo, Eng, Chambers and Sgroi, JJ., concur.