| Griffith v Wray |
| 2013 NY Slip Op 05615 [109 AD3d 512] |
| August 14, 2013 |
| Appellate Division, Second Department |
| Edward Griffith et al., Respondents, v CliffordWray, Appellant, et al., Defendants. |
—[*1] Robert P. Santoriella P.C., Brooklyn, N.Y. (Aaron DePass of counsel), forrespondents.
In an action, inter alia, for a judgment declaring that certain deeds are invalid, thedefendant Clifford Wray appeals from an order of the Supreme Court, Kings County(Dabiri, J.), dated January 5, 2012, which granted that branch of the plaintiffs' motionwhich was, in effect, for leave to renew both their opposition to his motion, among otherthings, to dismiss the complaint insofar as asserted against him pursuant to CPLR 3216and their cross motion, in effect, for leave to enlarge the time to serve and file a note ofissue, which had been determined in an order of the same court dated August 30, 2011,and, upon renewal, vacated the order dated August 30, 2011, and thereupon denied hismotion, inter alia, to dismiss the complaint insofar as asserted against him, and grantedthe plaintiffs' cross motion, in effect, for leave to enlarge the time to serve and file a noteof issue.
Ordered that the order dated January 5, 2012, is affirmed, with costs.
"[W]hile the failure to comply with a court order directing the filing of a note ofissue can, in the proper circumstances, provide the basis for the dismissal of a complaintunder CPLR 3216, courts are prohibited from dismissing an action based on neglect toprosecute unless the CPLR 3216 statutory preconditions to dismissal are met" (Banik v Evy Realty, LLC, 84AD3d 994, 996 [2011]; see Baczkowski v Collins Constr. Co., 89 NY2d499, 502-503 [1997]; Delgado vNew York City Hous. Auth., 21 AD3d 522, 522 [2005]; Murray v SmithCorp., 296 AD2d 445, 446-447 [2002]). "A 90-day demand to file a note of issue isone of the statutory preconditions" (Neary v Tower Ins., 94 AD3d 723, 724 [2012]; seeCPLR 3216 [b] [3]; Maharaj v LaRoche, 69 AD3d 684, 684 [2010]).
Here, the defendant Clifford Wray did not serve a 90-day demand, but relied insteadon an order dated June 13, 2008, which instructed the plaintiffs that the failure to serveand file a note of issue within 90 days would result in dismissal of the action pursuant toCPLR 3216. This order had the same effect as a valid 90-day notice pursuant to CPLR3216 (see Huger v Cushman &Wakefield, Inc., 58 AD3d 682, 684 [2009]; cf. Neary v Tower Ins., 94 AD3d 723, 724 [2012]; Tolmasova v Umarova, 90AD3d 1028 [2011]; Banik v Evy Realty, LLC, 84 AD3d at 996).[*2]
To avoid the sanction of dismissal, the plaintiffswere initially required to comply with the order dated June 13, 2008, either by servingand filing a timely note of issue or by moving, before the default date, to vacate the orderor to extend the 90-day period pursuant to CPLR 2004 (see Sanchez v Serje, 78 AD3d1155, 1156 [2010]; Bokhari v Home Depot U.S.A., 4 AD3d 381, 382 [2004];McKinney v Corby, 295 AD2d 580, 581 [2002]). Having failed to pursue eitherof the foregoing options, the plaintiffs were obligated to demonstrate a reasonable excusefor the delay and a potentially meritorious cause of action to avoid the sanction ofdismissal (see CPLR 3216 [e]; Dominguez v Jamaica Med. Ctr., 72 AD3d 876 [2010]; Picot v City of New York, 50AD3d 757, 758 [2008]; McKinney v Corby, 295 AD2d at 581;Flomenhaft v Baron, 281 AD2d 389 [2001]). In renewing their opposition toWray's motion to dismiss the complaint insofar as asserted against him pursuant to CPLR3216 and their cross motion for leave to enlarge the time to serve and file a note of issue,the plaintiffs offered new facts not offered on the prior motion and cross motion thatwere sufficient to support both their cross motion and their opposition to Wray's motion.The plaintiffs established that these facts necessarily required the Supreme Court tochange its prior determination, and provided a reasonable justification for the failure topresent such facts in connection with the prior motion and cross motion (seeCPLR 2221 [e] [2], [3]; DeMarquez v Gallo, 94 AD3d 1039, 1040 [2012]).Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motionwhich was, in effect, for leave to renew, and thereupon properly denied Wray's motionpursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him andproperly granted the plaintiffs' cross motion for leave to enlarge the time to serve and filea note of issue. Dillon, J.P., Roman, Miller and Hinds-Radix, JJ., concur.