SHARPE v. OSORIO (2005)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Kings County (Kramer, J.), dated October 22, 2004, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3216 for want of prosecution, and (2) so much of an order of the same court dated December 10, 2004, as, upon renewal, in effect, adhered to the original determination.

ORDERED that the order dated October 22, 2004, is reversed insofar as appealed from, on the law, the order dated December 10, 2004, is vacated, and that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3216 for want of prosecution is granted;  and it is further,

ORDERED that the appeal from the order dated December 10, 2004, is dismissed as academic;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

 Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff was required to file a note of issue in compliance with the notice or move, before the default date, either to vacate the notice or to extend the 90-day period (see DeVore v. Lederman, 14 A.D.3d 648, 649, 789 N.Y.S.2d 507;  Walters v. Hoboken Wood Flooring Corp., 6 A.D.3d 696, 697, 775 N.Y.S.2d 158;  Estate of Hamilton v. Nassau Suffolk Home Health Care, 1 A.D.3d 474, 767 N.Y.S.2d 230).   The plaintiff did neither.   Thus, in order to avoid dismissal, she was required to provide a justifiable excuse for her delay and to demonstrate a meritorious cause of action (see CPLR 3216[e];  Estate of Hamilton v. Nassau Suffolk Home Health Care, supra;  Aguilar v. Knutson, 296 A.D.2d 562, 747 N.Y.S.2d 517;  Werbin v. Locicero, 287 A.D.2d 617, 618, 732 N.Y.S.2d 37).   Again, the plaintiff did neither.   The plaintiff failed to provide a justifiable excuse for the extensive delay in prosecuting this action and her submission included neither a showing of merit with respect to liability by one with personal knowledge of the facts, as it must (see Garcia v. Roopnarine, 18 A.D.3d 607, 795 N.Y.S.2d 611;  Tietz v. Blatt, 280 A.D.2d 469, 720 N.Y.S.2d 373;  Duqmaq v. Stewart, 137 A.D.2d 653, 524 N.Y.S.2d 745), nor evidentiary proof that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident, as is required (see Uddin v. Mirza, 10 A.D.3d 722, 781 N.Y.S.2d 911;  LaMacchia v. Rogers, 8 A.D.3d 346, 777 N.Y.S.2d 736;  Gache v. Incorporated Vil. of Freeport, 202 A.D.2d 470, 609 N.Y.S.2d 42).   Accordingly, the defendants' motion to dismiss the complaint pursuant to CPLR 3216 should have been granted.