You are here: / / Certification Order Requiring Filing of Note of Issue in 70, Rather than...

Certification Order Requiring Filing of Note of Issue in 70, Rather than 90, Days Could Not Be Basis of Dismissal

The Second Department determined that a certification order which required a note of issue be filed within 70 days, rather than 90 days, could not be the basis for dismissal of the action:

The certification order dated March 2, 2010, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiff to file a note of issue within 70 days, rather than 90 days, of the date of the order. Since the order failed to conform with a statutorily mandated condition precedent to dismissal of the action, the Supreme Court was not authorized to dismiss the action pursuant to CPLR 3216… . Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record, and could not have been avoided if brought to the attention of the Supreme Court… . Gu v Hatsis, 2013 NY Slip Op 03970, 2nd Dept, 6-5-13

 

You might also like
PLAINTIFF CHANGED LANES, CUT OFF DEFENDANT’S VEHICLE AND CRASHED INTO THE REAR OF THE CAR IN FRONT; DEFENDANTS MOVED FOR SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE; SUPREME COURT DENIED THE MOTION DESPITE PLAINTIFF’S FAILURE TO OPPOSE IT; THE SECOND DEPARTMENT AWARDED DEFENDANTS SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE (SECOND DEPT). ​
FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS.
Disparaging Allegations in Complaint Protected by Judicial Privilege
A DEFENDANT IN A FORECLOSURE ACTION WHICH HAS “FAILED TO APPEAR” IS NOT ENTITLED TO NOTICE OF A MOTION TO CONFIRM A REFEREE’S REPORT, NOTWITHSTANDING DICTA IN PRIOR 2ND DEPARTMENT RULINGS; A DETAILED AND COMPREHENSIVE DISCUSSION OF THE NOTICE REQUIREMENTS WHERE A DEFENDANT IN A FORECLOSURE ACTION HAS DEFAULTED (SECOND DEPT).
Taser or Stun Gun Is Not a “Dangerous Instrument” for Purposes of Burglary and Menacing Statutes; Court Must Articulate Specific Reasons for Shackling Defendant During Trial
PLAINTIFF WAS STRUCK BY A TRAIN; THE “OPEN RUN” DEFENSE ALLOWS A TRAIN OPERATOR TO PROCEED NORMALLY AND ASSUME A PERSON SEEN AHEAD ON THE TRACKS WILL GET OUT OF THE WAY; THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT THE “OPEN RUN” DEFENSE APPLIES WHETHER THE ACCIDENT HAPPENS IN DAYLIGHT OR, AS HERE, AT NIGHT (SECOND DEPT).
WHERE, AS HERE, A PARTY IS A DEFENDANT IN ONE ACTION AND A PLAINTIFF IN ANOTHER ACTION, BOTH OF WHICH STE,M FROM THE SAME TRAFFIC ACCIDENT, THE ACTIONS SHOULD BE CONSOLIDATED (SECOND DEPT).
BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Note of Issue Which States Discovery Not Complete Is a Nullity No Basis in Record for Denying Noncustodial Parent Visitation