Practice point: A certification order of the Supreme Court directing the plaintiff to file a note of issue within 90 days, and
warning that the complaint would be deemed dismissed without further
order if the plaintiff failed to comply, was effectively a 90-day notice pursuant to CPLR
3216.
Having received notice, the plaintiff was required either to
serve and file a timely note of issue or to move pursuant to CPLR 2004,
prior to the default date, to extend the time to serve and
file. The plaintiff did neither. Thus, to avoid dismissal, the
plaintiff was required to demonstrate a justifiable excuse for failure to comply with the certification order and a
potentially meritorious cause of action, pursuant to CPLR 3216[e]. The assertion of the plaintiff's counsel that he incorrectly
calendared the date on which the note of issue was due amounted to a
reasonable excuse of law office failure, but the plaintiff failed to provide in her initial moving papers an affidavit of merit from a medical expert competent to attest to the meritorious nature of the cause of action alleging medical malpractice.
Student note: It was improper for the plaintiff to submit an affidavit of
merit from a medical expert for the first time in her reply papers.
Case: King v. Dobriner, NY Slip Op 03817 (2d Dept. 2013).
Here is the decision.
Monday's issue: Summary judgment on liability in an auto case.
