Sunday, June 21, 2009

Ninety Day Notice

- “In the event that the party upon whom is served the demand specified in subdivision (b)(3) of this rule fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grand such motion unless the said party shoes justifiable excuse for the delay and a good meritorious cause of action”. CPLR 3216[e]

- “The plaintiffs proffered a reasonable excuse for their delay in responding to the 90-day notice in that they were actively engaged in settlement negotiations with the defendants at the time that they were served with the 90-day notice and the subsequent motion to dismiss the complaint [cf. Scarlett v McCarthy, 2 AD3d 623; Sortino v Fisher, 20 AD2d 25, 29]. Additionally, the plaintiffs established the existence of a meritorious cause of action. Accordingly, the defendants' motion to dismiss the complaint should have been denied.” Katina, Inc. v. Town of Hempstead, [Index No. 31967/98] New York Law Journal December 15, 2004, Section: Decisions; Pg. 29


- “To avoid dismissal, the plaintiff was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and a meritorious cause of action [see CPLR 105[u], 3216[e]; Werbin v Locicero, 287 AD2d 617, 618; Matter of Simmons v McSimmons, Inc., 261 AD2d 547, 548; Markarian v Hundert, 204 AD2d 697, 697-698]. The plaintiff made that showing. Accordingly, the Supreme Court providently exercised its discretion in denying the defendants' motion.” Carlos Santiago v. Grenadier Realty Corp [Index Nos. 49440/00, 75381/01], New York Law Journal, January 3, 2005, Section: Decisions; Pg. 37

- “After receiving a 90-day notice pursuant to CPLR 3216, the appellant timely moved, inter alia, for an extension of time within which to file a note of issue [see CPLR 3216[b][3]]. In order to vacate the demand and obtain an extension of time to file a note of issue the appellant was required to show either a need for the extension or good cause for the past delay [see Conway v Brooklyn Union Gas Co., 212 AD2d 497]. Since the appellant's motion was timely, no affidavit of merit was necessary [see id.]”. Arkalgud Ramachandra, v. Gelco Corporation, [Index No. 50/01] New York Law Journal January 3, 2005, Monday Section: Decisions; Pg. 33

- “[S]ection 3216 of the CPLR identifies the requirements that must be met for a party who is seeking dismissal of an action for want of prosecution in proceedings that do not come within the purview of CPLR 3404. This section of the CPLR states that, to succeed in such a motion to dismiss, the party seeking dismissal must demonstrate the following:


1. The issue has been joined for at least one year, and
2. The defendant must serve a demand on the plaintiff to resume prosecution and file a note of issue or notice of trial within 90 days” Budhram v. American Dental Centers, New York Law Journal February 18, 2005, Section: Decision Of Interest; Pg. 24

- “Pursuant to the provisions of CPLR 3216, no motion to dismiss for failure to prosecute may be made by a defendant unless the defendant has first served the plaintiff with a demand that he or she file a note of issue. Chase v. Scavuzzo, 87 N.Y. 2d 228, 638 N.Y.S. 2d 587 [1995]. Indeed, CPLR 3216 expressly and unequivocally precludes such dismissal unless the party seeking dismissal shall have served a written demand by registered or certified mail requiring the party against whom dismissal is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand. Strasser v. Prudential Securities, Inc., 2 A.D. 3d 239, 769 N.Y.S. 2d 247 [1st Dept. 2003].” Budhram v. American Dental Centers, New York Law Journal February 18, 2005, Section: Decision Of Interest; Pg. 24

- “To vacate a default, the moving party must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action (see Weekes v Karayianakis, 304 A.D.2d 561, 758 N.Y.S.2d 117 [2003]; cf. Antoku v Grace Indus., 295 A.D.2d 294, 742 N.Y.S.2d 901 [2002]; Fuller v Tae Kwon, 259 A.D.2d 662, 686 N.Y.S.2d 831 [1999]). The determination of what constitutes a reasonable excuse [***2] is left to the sound discretion of the court (see Holt Constr. Corp. v J & R Music World, 294 A.D.2d 540, 742 N.Y.S.2d 876 [2002]; Matter of Gambardella v Ortov Light., 278 A.D.2d 494, 717 N.Y.S.2d 923 [2000]). Further, public policy favors a determination of controversies on their merits (see Eastern Resource Serv. v Mountbatten Sur. Co., 289 A.D.2d 283, 284, 734 N.Y.S.2d 496 [2001]; Darrell v Yurchuk, 174 A.D.2d 557, 572 N.Y.S.2d 643 [1991]).” Scarlett v. McCarthy, 2 AD3d 623; 768 N.Y.S.2d 342; 2003 N.Y. App. Div. LEXIS 13403

- “Here, the Supreme Court providently exercised its discretion [*624] in accepting the defendant's proffered excuse that his insurance carrier was actively engaged in settlement negotiations with the plaintiff's counsel, and that the plaintiff's counsel never mentioned that he would be moving for leave to enter a default judgment (see Lehrman v Lake Katonah Club, 295 A.D.2d 322, 744 N.Y.S.2d 338 [2002]; Swain v Janzen, 121 A.D.2d 378, 379, 503 N.Y.S.2d 88 [1986]). Additionally, the defendant established the existence of a meritorious defense based upon the circumstances of the accident, which indicate that the plaintiff could be found at least partially at fault in the happening [***3] of the accident.” Scarlett v. McCarthy, 2 AD3d 623; 768 N.Y.S.2d 342; 2003 N.Y. App. Div. LEXIS 13403

- Since carrier has not issued a timely denial, no further discovery-- which includes an EBT of the medical provider-- is permissible, unless the carrier alleges fraud or lack of coverage. Ostia Medical, P.C. v. GEICO, 2003 WL 23152964 (N.Y.Dist.Ct.), 1 Misc.3d 907(A), 2003, N.Y. Slip Op. 51560(U).

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