You are here: / / THE CERTIFICATION ORDER DIRECTING PLAINTIFF TO FILE A NOTE OF ISSUE WITHIN...

THE CERTIFICATION ORDER DIRECTING PLAINTIFF TO FILE A NOTE OF ISSUE WITHIN 90 DAYS WAS NOT A VALID 90-DAY NOTICE PURSUANT TO CPLR 3216; THE ACTION SHOULD NOT HAVE BEEN DISMISSED AND THE CROSS-MOTION TO EXTEND THE TIME FOR FILING A NOTE OF ISSUE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should not have been dismissed for failure to file a note of issue because a valid 90-day notice had not been issued or served. The certification order issued by Supreme Court directing plaintiff to file a note of issue within 90 days did not meet the criteria for a 90-day notice required by CPLR 3216:

… [T]he record shows that neither the Supreme Court nor any of the defendants served, pursuant to CPLR 3216, a 90-day demand to file a note of issue on the plaintiff. … [A]lthough the court issued a certification order … directing the plaintiff to file the note of issue within 90 days of the order, it did not constitute a valid 90-day demand because it did not contain any language warning that the plaintiff’s failure to file the note of issue within 90 days would result in dismissal pursuant to CPLR 3216 … . Additionally, the … certification order did not set forth specific conduct by the plaintiff constituting neglect … . Since the plaintiff was never served with a 90-day demand, the court should not have dismissed the complaint due to the plaintiff’s failure to file the note of issue … .

… [T]he Supreme Court could not rely upon CPLR 3126 as a basis upon which to dismiss the complaint as the plaintiff’s failure to timely file the note of issue or to move to extend the time to file the note of issue did not constitute disobedience of an “order for disclosure” (CPLR 3126 … ).

We also disagree with the Supreme Court’s determination denying the plaintiff’s cross motion, pursuant to CPLR 2004, to extend her time to file the note of issue. Discovery is complete and the defendants failed to establish that they were prejudiced by the plaintiff’s failure to timely file the note of issue and her delay in moving for an extension of time to do so … . Tolkoff v Goldstein, 2020 NY Slip Op 04341, Second Dept 7-29-20

 

You might also like
PLAINTIFF BANK DID NOT DEMONSTRATE THE NOTICE OF FORECLOSURE WAS MAILED IN ACCORDANCE WITH RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULDN’T HAVE BEEN GRANTED (SECOND DEPT).
THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE STANDING TO FORECLOSE LAID AN ADEQUATE FOUNDATION FOR THE RELEVANT BUSINESS RECORDS BUT THE RECORDS THEMSELVES WERE NOT SUBMITTED, RENDERING THE AFFIDAVIT HEARSAY; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISION OF THE MORTGAGE, A CONDITION PRECEDENT (SECOND DEPT).
IT IS PROPER TO MAKE PARTICIPATION IN COUNSELING A COMPONENT OF A PARENTAL ACCESS ORDER, BUT IT IS IMPROPER TO CONDITION A FUTURE APPLICATION FOR PARENTAL ACCESS ON PARTICIPATION IN COUNSELING (SECOND DEPT).
Similar Pending Lawsuit Properly Dismissed—Two Lawsuits Sought Declaratory Judgment Re: Duty to Defend and Indemnify
MOTION TO DISMISS THE NEGLIGENCE ACTION AGAINST DEFENDANT SECURITY COMPANY IN THIS THIRD PARTY ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED, THE EVIDENCE SUBMITTED BY THE DEFENDANT DID NOT RULE OUT LIABILITY BASED UPON THE RELATIONSHIP BETWEEN THE DEFENDANT SECURITY COMPANY AND THE COMPANY PROVIDING SECURITY AT THE TIME OF THE ASSAULT (SECOND DEPT).
DEFENDANT WAS ENTITLED TO NOTICE THE PEOPLE WERE GOING TO PRESENT EVIDENCE SHE TYPED IN THE COMBINATION TO A SAFE IN RESPONSE TO A REQUEST FROM A DETECTIVE, NEW TRIAL ORDERED (SECOND DEPT).
SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED.
Pursuant to the NYC Administrative Code, Abutting Property Owners Are Not Responsible for the Maintenance of Tree Wells Within the Sidewalk

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

QUESTION OF FACT WHETHER THE CORPORATE VEIL SHOULD BE PIERCED IN THIS BREACH... A VIOLATION OF THE RIGHT OF PRIVACY CAUSE OF ACTION ALLEGING USE OF A PERSON’S...