| Saginor v Brook |
| 2012 NY Slip Op 01447 [92 AD3d 860] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Gregory Saginor, Appellant, v Richard E. Brook et al.,Respondents, et al., Defendant. |
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Richard E. Brook, Port Washington, N.Y., respondent pro se. McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (John P. Cookson ofcounsel), for respondent Marc G. Schultz.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Kings County (Spodek, J.), dated February 16, 2010, which, interalia, denied, as untimely, his motion pursuant to CPLR 2004 to extend the time to serve and file anote of issue and granted the separate cross motions of the defendant Richard E. Brook and thedefendant Marc G. Schultz to dismiss the complaint insofar as asserted against each of thempursuant to CPLR 3216.
Ordered that the order is affirmed, with one bill of costs.
The defendants Richard E. Brook and Marc G. Schultz (hereinafter together the defendants)served 90-day demands upon the plaintiff pursuant to CPLR 3216. Schultz's 90-day demand wasreceived on January 16, 2009. The parties dispute whether Brook's 90-day demand was receivedon January 7, or January 8, 2009.
Upon receipt of the 90-day demands, the plaintiff was required to comply with them either byfiling a timely note of issue or by moving, before the default date, to vacate the demands or toextend the 90-day period pursuant to CPLR 2004 (see Sanchez v Serje, 78 AD3d 1155, 1156 [2010]). By motiondated April 6, 2009, the plaintiff timely sought an extension upon receipt of Schultz's 90-daydemand and, contrary to the Supreme Court's determination, also timely sought an extensionupon receipt of Brook's 90-day demand (see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561-562[2006]). Nevertheless, the plaintiff's motion was properly denied and the defendants' crossmotions to dismiss the complaint insofar as asserted against each of them pursuant to CPLR 3216were properly granted in light of the lengthy delay in prosecuting this action, the absence of goodcause for the inactivity in this case, and the prejudice to the defendants (see Sanchez vSerje, 78 AD3d at 1156; Harringtonv Toback, 34 AD3d 640, 640-641 [2006]).
The plaintiff's remaining contention is without merit. Dillon, J.P., Dickerson, Eng andLeventhal, JJ., concur.