Summary
This Appellate Division, Second Department decision affirms a Supreme Court order granting a defendant's renewed motion to dismiss a personal injury complaint for failure to prosecute pursuant to CPLR 3216. The court held that the plaintiff failed to comply with a 90-day demand to file a note of issue or seek an extension, and did not provide a justifiable excuse or demonstrate a potentially meritorious cause of action in opposition to the motion. Consequently, the appellate court found the trial court properly exercised its discretion in dismissing the action.
Topics
Practice areas
Questions Presented
- Whether the trial court abused its discretion in granting leave to renew a motion to dismiss for failure to prosecute under CPLR 3216.
- Whether the plaintiff’s remaining contentions were properly raised for the first time on appeal.
Holdings
- The trial court properly exercised its discretion in granting the motion to dismiss; the appeal is affirmed.
- The plaintiff’s remaining contentions were improperly raised for the first time on appeal and therefore will not be considered.
Key quotations
“CPLR 2221(e)(2) and (3) provide, in relevant part, that "[a] motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination [and] shall contain reasonable justification for the failure to present such facts on the prior motion."” (at 1)
Factual background
The plaintiff sued for personal injuries after tripping on a sidewalk defect owned by Cerumidy Realty. After the defendant served a 90‑day demand to file a note of issue, the plaintiff failed to do so and did not move to vacate or extend the demand.
Procedural history
Plaintiff filed suit in October 2019. Defendant served a 90‑day notice under CPLR 3216 in October 2022. Defendant moved to dismiss for failure to prosecute; the trial court denied the motion on August 2, 2023. Defendant later moved for leave to renew the motion; the trial court granted leave and dismissed the complaint on November 28, 2023. Plaintiff appealed.