| Bhatti v Empire Realty Assoc., Inc. |
| 2012 NY Slip Op 09018 [101 AD3d 1066] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Noor Bhatti et al., Respondents, v Empire RealtyAssociates, Inc., et al., Appellants. |
—[*1] Martin R. Munitz, P.C., New York, N.Y. (Louis A. Badolato and George Greene of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Silber, J.), dated April 12, 2012, which granted theplaintiffs' motion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216, torestore the action to active status, and to extend their time to file a note of issue.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion, in effect,to vacate the dismissal of the action pursuant to CPLR 3216, to restore the action to active status,and to extend their time to file a note of issue is denied.
In a compliance conference order date March 3, 2006, the Supreme Court directed theplaintiffs to file a note of issue on or before September 3, 2006, and warned that the action wouldbe dismissed if the plaintiffs failed to comply. Counsel for the plaintiffs signed the order,acknowledging receipt thereof. This order had the same effect as a 90-day notice pursuant toCPLR 3216 (see Shcherbina v QueensNassau Nursing Home, Inc., 66 AD3d 869 [2009]; Anjum v Karagoz, 48 AD3d 605 [2008]). Therefore, the plaintiffswere required either to serve and file a timely note of issue or to move, before the default date,for an extension of time pursuant to CPLR 2004 (see Stallone v Richard, 95 AD3d 875, 876 [2012]; Davis v Cardiovascular Consultants ofLong Is., P.C., 65 AD3d 1076, 1077 [2009]; Sharpe v Osorio, 21 AD3d 467, 468 [2005]; Giannoccoli v One Cent. Park W.Assoc., 15 AD3d 348, 348-349 [2005]; DeVore v Lederman, 14 AD3d 648, 649 [2005]). The plaintiffs didneither. Accordingly, the action was properly dismissed pursuant to CPLR 3216 (seeShcherbina v Queens Nassau Nursing Home, Inc., 66 AD3d at 869; Bowman v Kusnick, 35 AD3d643, 644 [2006]).
To vacate the dismissal of an action pursuant to CPLR 3216, the plaintiffs were required todemonstrate a justifiable excuse for their failure to comply with the compliance conference orderand the existence of a potentially meritorious cause of action (see CPLR 3216 [e];Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Stallone v Richard,95 AD3d at 876; Felix v County ofNassau, 52 AD3d 653, 654 [2008]; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783[2008]). Here, the conclusory and unsubstantiated claim of law office failure proffered by theplaintiffs [*2]did not rise to the level of a justifiable excuse(see Stallone v Richard, 95 AD3d at 876; Fenner v County of Nassau, 80 AD3d 555, 556 [2011]; Lugauer v Forest City Ratner Co., 44AD3d 829, 830 [2007]). As the plaintiffs failed to provide a justifiable excuse, we need notaddress whether they established the existence of a potentially meritorious cause of action (see Michaels v Sunrise Bldg. &Remodeling, Inc., 65 AD3d 1021, 1024 [2009]). Accordingly, the Supreme Courtshould have denied the plaintiffs' motion, in effect, to vacate the dismissal of the action pursuantto CPLR 3216, to restore the action to active status, and to extend their time to file a note ofissue. Mastro, J.P., Rivera, Chambers and Lott, JJ., concur.