You are here: / / ALTHOUGH PLAINTIFF’S COUNSEL IN THIS NEGLIGENCE ACTION DEMONSTRATED...
, , ,

ALTHOUGH PLAINTIFF’S COUNSEL IN THIS NEGLIGENCE ACTION DEMONSTRATED A JUSTIFIABLE EXCUSE FOR NOT TIMELY FILING A NOTE OF ISSUE AFTER A NINETY-DAY DEMAND, PLAINTIFF DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; PLAINTIFF SUBMITTED AN AFFIDAVIT WHICH RELIED ON HEARSAY PROVIDED BY TWO SOURCES, BUT DID NOT SUBMIT AFFIDAVITS FROM THOSE SOURCES (FIRST DEPT).

The First Department, reversing Supreme Court, determined, although plaintiff offered a justifiable excuse for failing to timely file a note of issue, plaintiff did not demonstrate a meritorious cause of action. Therefore the complaint should have been dismissed. The complaint alleged the defendants negligently failed to provide adequate mental health and substance abuse treatment to the decedent, who died of a drug overdose in a shelter owned and operated by defendants:

Following a period of over one year during which plaintiff failed to respond to their discovery demands, defendants served plaintiff with a written demand to serve and file a note of issue within 90 days (see CPLR 3216[b]). Plaintiff failed to respond within the 90-day period, resulting in defendants’ motions to dismiss for failure to prosecute.

Although plaintiff’s counsel offered a justifiable excuse for the failure to file a note of issue following defendants’ service of 90-day notices, plaintiff failed to submit an adequate affidavit of merit demonstrating a meritorious cause of action in opposition to defendants’ motions … . In her affidavit, plaintiff, who had no personal knowledge of the events in question, relied on two unnamed hearsay sources … . Plaintiff offered no excuse for failing to provide affidavits from the shelter residents who supplied her with the information upon which her affidavit was based … , and, in any event, she did not show that defendants’ negligence was “a substantial cause of the events” resulting in her son’s death … . Felipe v Volunteers of Am.-Greater N.Y., 2025 NY Slip Op 06252, First Dept 11-13-25

Practice Point: In seeking to avoid dismissal of a complaint for failing to timely file a note of issue after a 90-day demand, a plaintiff must offer a justifiable excuse and demonstrate a meritorious cause of action. Here plaintiff’s counsel provided a justifiable excuse. But to demonstrate a meritorious cause of action plaintiff submitted an affidavit which relied on hearsay. Without affidavits from the sources of the hearsay, a meritorious cause of action was not demonstrated and the complaint should have been dismissed.

 

You might also like
BELATED FILING OF COVER SHEETS, UNDER THE UNIQUE COVID-19-RELATED CIRCUMSTANCES IN NEW YORK CITY, WAS NOT A FATAL DEFECT (DISAGREEING WITH THE SECOND DEPARTMENT) (FIRST DEPT).
THE PROOF AT TRIAL DID NOT DEMONSTRATE PLAINTIFF INHALED SUFFICIENT LEVELS OF ASBESTOS WHEN USING DEFENDANT’S TALCUM POWDER TO HAVE CAUSED HER MESOTHELIOMA; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​
IN THIS CROSSWALK SLIP AND FALL CASE, THE FACT THAT THE MUNICIPALITY REPAIRED THE AREA FIVE MONTHS BEFORE DID NOT CONSTITUTE AN EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (FIRST DEPT).
THE COMPLAINT STATED A CAUSE OF ACTION FOR FRAUD BASED UPON DEFENDANTS’ ALLEGED INFLATION OF THE VALUE OF THE BUSINESS PURCHASED BY PLAINTIFF; AND THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF CONTRACTUAL WARRANTIES WHICH DID NOT DUPLICATE THE FRAUD CAUSE OF ACTION (FIRST DEPT).
PLAINTIFF DID NOT DEMONSTRATE ANY BASIS FOR IN PERSONAM OR IN REM JURISDICTION BY THE NEW YORK COURTS, PROCEEDING TO ENFORCE AN ALBANIAN MONEY JUDGMENT PURSUANT TO ARTICLE 53 OF THE CPLR SHOULD HAVE BEEN DISMISSED (FIRST DEPT).
THE MOTION TO STRIKE INFLAMMATORY ALLEGATIONS FROM THE COMPLAINT SHOULD HAVE BEEN GRANTED; WHETHER EVIDENCE ASSOCIATED WITH THE ALLEGATIONS IS DISCOVERABLE OR ADMISSIBLE AT TRIAL IS NOT AFFECTED BY GRANTING THE MOTION TO STRIKE (FIRST DEPT).
IN A SIDEWALK SLIP AND FALL CASE, COMMUNICATION WITH THE CITY BY PHONE DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT, EVEN IF THE COMMUNICATION WAS REDUCED TO WRITING; PLAINTIFF DID NOT DEMONSTRATE AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT APPLIED (FIRST DEPT).
Class Certification in Landlord-Tenant Action Upheld

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

THE PETITION ALLEGED THE DECEASED CO-TRUSTEE CONCEALED THE TRUST AND DISTRIBUTIONS... CONTRARY TO THE STANDARD USED BY THE WORKERS’ COMPENSATION BOARD, AN SLU...