Motion to dismiss for failure to serve and file a note of issue, and preclusion from testifying at trial.

Practice point: The complaint was not dismissed on the grounds that plaintiff defied the court's order to serve and file a note of issue because, although court orders may constitute a written demand to serve and file a note of issue under CPLR 3216(b)(3), the order here did not give plaintiff the required 90 days to serve and file a note of issue, or contain a statement that failure to timely do so would serve as a basis for a motion to dismiss.

Student note: Plaintiff was precluded from testifying at trial because of an irresponsible approach to discovery. Plaintiff failed to appear on the court-ordered date for deposition, despite defendants' attempts to confirm her availability before the deposition date; never apprised the court of her inability to be deposed that day, despite clear directives to do so in the preliminary conference order; never explained her failure to do any of the foregoing; and failed to timely respond to interrogatories by the discovery deadline, despite multiple requests to do so.

Case: Mehta v. Chugh, NY Slip Op 06645 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Vacating a dismissal order.