Practice point: Having received a 90-day notice, the
plaintiff was required either to serve and file a timely note of issue or move,
before the default date, for an extension of time pursuant to CPLR 2004. The
plaintiff did neither. To avoid dismissal of the action, the plaintiff was
required to show a justifiable excuse for the delay and a potentially
meritorious cause of action, pursuant to CPLR 3216[e].
Student note: Plaintiff’s showing of a potentially meritorious
cause of action requires an affidavit by one with personal knowledge of the facts.
Case: Colon v. Papatolis,
NY Slip Op 03975 (2d Dept.
2012).
Monday’s issue: Orders of dismissal.
