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Fraga v. Smithaven Open MRI

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 2004
774 N.Y.S.2d 415 (N.Y. App. Div. 2004)

Opinion

2003-02273.

Decided April 12, 2004.

In an action to recover damages for unfair competition, the plaintiff appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), dated January 13, 2003, which denied her motion to deem a note of issue filed on July 26, 2001, to have been timely filed and to restore the action to the trial calendar.

Epstein Becker Green, P.C., New York, N.Y. (Kenneth J. Kelly and Darryll A. Buford of counsel), and Stephen E. Powers, Marlboro, N.J., for appellant (one brief filed).

Seiff Kretz Abercrombie, New York, N.Y. (Walter A. Kretz, Jr., of counsel), for respondents.

Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, WILLIAM F. MASTRO, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The certification order dated April 18, 2000, which directed the plaintiff to serve and file a note of issue within 90 days pursuant to CPLR 3216, and which was signed by counsel for all parties, constituted a valid 90-day notice pursuant to CPLR 3216 ( see Bokhari v. Home Depot USA, 4 A.D.3d 381; Apicella v. Estate of Apicella, 305 A.D.2d 621, lv denied 100 N.Y.2d 513; Aguilar v. Knutson, 296 A.D.2d 562). Thus, having received a 90-day notice, the plaintiff was required either to timely file a note of issue or move, before the default date, to vacate the notice or to extend the 90-day period ( see Aguilar v. Knutson, supra; Vento v. Bargain Bilge W., 292 A.D.2d 596, 597; Raffa v. Cook, 289 A.D.2d 385).

More than two years after the default date, the plaintiff moved to deem a note of issue filed on July 26, 2001, to have been timely filed and to restore the action to the trial calendar. The plaintiff was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and a meritorious cause of action ( see Washington v. Gorray, 302 A.D.2d 454, lv denied 1 N.Y.3d 502; Chong Suk Rose v. Heil Trailer Intl, 284 A.D.2d 445; Tietz v. Blatt, 280 A.D.2d 469). The plaintiff failed to do either ( see Allied Maintenance Corp. v. Allied Mechanical Trades, 42 N.Y.2d 538; V.S. Distribs. v. Emkay Trading Corp., 1 A.D.3d 350; Camelot Assoc. Corp. v. Camelot Design Dev., 298 A.D.2d 799; Sample, Inc. v. Porrath, 41 A.D.2d 118, 122, affd 33 N.Y.2d 961).

ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.


Summaries of

Fraga v. Smithaven Open MRI

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 2004
774 N.Y.S.2d 415 (N.Y. App. Div. 2004)
Case details for

Fraga v. Smithaven Open MRI

Case Details

Full title:AIDA E. FRAGA, ETC., appellant, v. SMITHAVEN OPEN MRI, ETC., ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 12, 2004

Citations

774 N.Y.S.2d 415 (N.Y. App. Div. 2004)
774 N.Y.S.2d 415

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