| Stallone v Richard |
| 2012 NY Slip Op 03437 [95 AD3d 875] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Frank M. Stallone, Appellant, v Joseph Richard et al.,Defendants, and Mary Richard et al., Respondents. |
—[*1] Jacobson & Schwartz, LLP, Jericho, N.Y. (Henry J. Cernitz of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Marber, J.), entered May 2, 2011, which granted that branchof the motion of the defendants Mary Richard and James Richard which was pursuant to CPLR3216 to dismiss the complaint insofar as asserted against them and denied his cross motion, ineffect, to vacate his default in timely filing a note of issue and to extend his time to file a note ofissue.
Ordered that the order is affirmed, with costs.
A certification order of the Supreme Court dated July 16, 2010, directing the plaintiff to file anote of issue within 90 days, and warning that the complaint would be deemed dismissed withoutfurther order of the Supreme Court if the plaintiff failed to comply with that directive, had thesame effect as a valid 90-day notice pursuant to CPLR 3216 (see Fenner v County of Nassau, 80 AD3d 555 [2011]; Sicoli v Sasson, 76 AD3d 1002,1003 [2010]; Rodriguez v Five TownsNissan, 69 AD3d 833, 834 [2010]; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783[2008]). Having received a 90-day notice, the plaintiff was required either to serve and file atimely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend thetime within which to serve and file a note of issue (see Fenner v County of Nassau, 80AD3d at 555; Sharpe v Osorio, 21AD3d 467, 468 [2005]). The plaintiff did neither. Thus, in order to avoid dismissal, theplaintiff was required to demonstrate a justifiable excuse for his failure to comply with thecertification order and the existence of a potentially meritorious cause of action (seeCPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997];Rodriguez v Five Towns Nissan, 69 AD3d at 834; Sharpe v Osorio, 21 AD3d at468).
Here, the conclusory and unsubstantiated claim of law office failure proffered by the plaintiffdid not rise to the level of a reasonable excuse (see Fenner v County of Nassau, 80 AD3dat 556; Star Indus., Inc. v InnovativeBeverages, Inc., 55 AD3d 903, 905 [2008]; Piton v Cribb, 38 AD3d 741, 742 [2007]). Further, the plaintifffailed to establish the existence of a potentially meritorious cause of action (see Bard v Jahnke, 6 NY3d 592[2006]; Sarno v Kelly, 78 AD3d1157 [2010]).[*2]
In light of the above, the plaintiff's remaining contentionneed not be considered.
Accordingly, the Supreme Court properly granted that branch of the motion of the defendantsMary Richard and James Richard which was pursuant to CPLR 3216 to dismiss the complaintinsofar as asserted against them and denied the plaintiff's cross motion, in effect, to vacate hisdefault in timely filing a note of issue and to extend his time to file a note of issue. Rivera, J.P.,Florio, Chambers and Cohen, JJ., concur.