Practice point: After having failed to comply with the 90-day demand, the plaintiff's unsubstantiated assertion that she entered into
an arbitration agreement with the defendant was insufficient to excuse the
delay in serving and filing the note of issue. In addition, even though the parties engaged in
negotiations regarding arbitration, the plaintiff failed to demonstrate
that she was actively engaged in these negotiations for any significant
amount of time prior to the default date, or during the ensuing one-year
period between the default date and the motion to dismiss. Finally, the conclusory allegations contained in the
verified complaint were insufficient to demonstrate that the plaintiff
had a potentially meritorious cause of action.
Student note: The defendant served the plaintiff with a 90-day
demand pursuant to CPLR 3216, and so the plaintiff was required to serve
and file a timely note of issue or to move, before the default date,
either to vacate the demand or 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].
Case: Abdul v. Lopez, NY Slip Op 07141 (2d Dept. 2013).
Here is the decision.
Monday's issue: An auto accident at an intersection.
