GAYDOS v. (and a third-party action).

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Supreme Court, Appellate Division, Second Department, New York.

Ann M. GAYDOS, et al., appellants-respondents, v. Fred MUHLBAUER, a/k/a Frederick W. Muhlbauer, et al., respondents, New York Board of Fire Underwriters, et al., appellants. (and a third-party action).

Decided: August 16, 2004

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, BARRY A. COZIER, and ROBERT A. LIFSON, JJ. Julien & Schlesinger, P.C., New York, N.Y. (Mary E. Burns of counsel), for appellants-respondents. Donald T. Rave, Locust Valley, N.Y. (Donald T. Rave, Jr., and Stacey Tranchina of counsel), for appellants. Denise R. Langweber, Merrick, N.Y., for respondents Fred Muhlbauer, a/k/a Frederick W. Muhlbauer, and Fred Muhlbauer, d/b/a Brookside Construction. Keller, O'Reilly, & Watson, P.C., Woodbury, N.Y. (Nicholas R. Capece, Jr., of counsel), for respondents Glenn S. Ayasse and Advantage Electric Contractors, Inc.

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Baisley, J.), dated November 26, 2002, which granted the motion of the defendants Fred Muhlbauer, a/k/a Frederick W. Muhlbauer, and Fred Muhlbauer, d/b/a Brookside Construction, and the separate motion of the defendants Glenn S. Ayasse and Advantage Electric Contractors, Inc., pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them, and the defendants New York Board of Fire Underwriters and Thomas Horn cross-appeal from so much of the same order as purportedly denied their application for the same relief.

ORDERED that the cross appeal is dismissed, as the application was pending and undecided at the time the order was issued (see Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99);  and it is further,

ORDERED that the order is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents Fred Muhlbauer, a/k/a Frederick W. Muhlbauer, Fred Muhlbauer, d/b/a Brookside Construction, Glenn S. Ayasse, and Advantage Electric Contractors, Inc.

 Upon a motion to dismiss pursuant to CPLR 3216, the burden is upon the plaintiff to establish both a reasonable excuse for the delay in responding to the 90-day demand as well as the existence of a meritorious action (see Wing v. Chammas, 78 A.D.2d 887, 433 N.Y.S.2d 43;  Matter of Simmons v. McSimmons, Inc., 261 A.D.2d 547, 690 N.Y.S.2d 643).   In the instant case, the plaintiffs failed to sustain that burden by showing that the action was meritorious.   The plaintiffs did not submit an expert affidavit demonstrating that the alleged injuries of the plaintiff Ann M. Gaydos were causally related to an electric shock that was allegedly caused by the negligence of the defendants, and as the Supreme Court noted, a substantial period of time passed between the time of the incident and the time that Gaydos sought treatment from a medical practitioner.   Also, the plaintiffs did not submit expert proof or other evidence that their house was in any way defectively constructed or that negated the possibility that the alleged defects in question were caused by subsequent contractors.

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