You are here: / / THE COURT’S ORDER DIRECTING PLAINTIFFS TO FILE A NOTE OF ISSUE DID...
,

THE COURT’S ORDER DIRECTING PLAINTIFFS TO FILE A NOTE OF ISSUE DID NOT COMPLY WITH THE CRITERIA FOR A 90-DAY NOTICE PURSUANT TO CPLR 3216; THE COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to restore the action to active status and to extend the time to serve and file a note of issue should have been granted. Supreme Court, after a compliance conference, directed plaintiffs to file a note of issue by August 4, 2016, which was 21 days from the date of the compliance conference order. The compliance order therefore did not meet the statutory criteria for a valid 90-day notice pursuant to CPLR 3216. Supreme Court should not have, sua sponte, directed dismissal of the complaint pursuant to CPLR 3216:

The compliance conference order dated July 14, 2016, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the plaintiffs to file a note of issue within 21 days, rather than 90 days, of the date of the order … . Furthermore, the compliance conference order failed to set forth any specific conduct constituting neglect by the plaintiffs in proceeding with the litigation (see CPLR 3216[b][3] …). In addition, the Supreme Court failed to give the parties notice and an opportunity to be heard prior to, sua sponte, directing dismissal of the complaint pursuant to CPLR 3216 … .

Since the statutory preconditions to dismissal were not met, the Supreme Court should not have, sua sponte, directed dismissal of the complaint pursuant to CPLR 3216 … .

Contrary to the respondents’ contention, this action could not have properly been dismissed pursuant to CPLR 3126, since there was no motion requesting this relief … . Christiano v Heatherwood House at Holbrook II, LLC, 2020 NY Slip Op 03891, Second Dept 7-15-20

 

You might also like
PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE RAISED QUESTIONS OF FACT WHETHER THE RELEASE WAS SIGNED BY PLAINTIFF UNDER UNFAIR CIRCUMSTANCES; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED UPON THE RELEASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
REMOVING PORTABLE LIGHTING EQUIPMENT IS NOT ‘ALTERING’ A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240(1), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF ENTITLED TO AMEND BILL OF PARTICULARS AS OF RIGHT PRIOR TO FILING OF NOTE OF ISSUE.
Evidence of Mother’s Mental Illness, Without More, Did Not Justify Neglect Finding
PETITION TO REMOVE A TRUSTEE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT). ​
HEIGHT DIFFERENTIAL BETWEEN TWO ADJACENT SIDEWALK SLABS WAS A TRIVIAL DEFECT AS A MATTER OF LAW; SLIP AND FALL ACTION DISMISSED (SECOND DEPT).
Primary Assumption of Risk Precludes Student’s Sports-Related Lawsuit.
DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE LANDLORD AND PROPERTY MANAGER DEMONSTRATED THE POWER-OPERATED DOOR WHICH... EVIDENCE THE AREA WAS INSPECTED ONCE A MONTH DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE...