Category: CPLR R. 3216

(3)
The court or party seeking such relief, as the case may be, shall have
served a written demand by registered or certified mail requiring the
party against whom such relief is sought to resume prosecution of the
action and to serve and file a note of issue within ninety days after
receipt of such demand, and further stating that the default by the
party upon whom such notice is served in complying with such demand
within said ninety day period will serve as a basis for a motion by the
party serving said demand for dismissal as against him for unreasonably
neglecting to proceed.

CPLR § 2004 Extensions of time generally

Foley v West-herr Automotive Group, Inc., 2009 NY Slip Op 04808 (App. Div., 4th, 2009)

Supreme Court did not abuse its discretion in denying the motion of
plaintiffs seeking permission to conduct further discovery and to
vacate the court's demand to serve and file a note of issue pursuant to
CPLR 3216 (b) (3) within 90 days. The court's demand provided that, in
the event that plaintiffs failed to comply with the demand, the court
upon its own motion would dismiss the complaint based on plaintiffs'
unreasonable neglect in proceeding with the action. We note that
plaintiffs moved within the 90-day period to vacate the demand and for
an extension of time in which to complete discovery, thereby avoiding
default with respect to the court's demand (see Walton v Clifton Springs Hosp. & Clinic, 255 AD2d 964, 965; Conway v Brooklyn Union Gas Co., 212 AD2d 497; cf. Baczkowski v Collins Constr. Co.,
89 NY2d 499, 503-504). We further note, however, that "[t]he motion
requires the moving party to make a showing of need for the extension
or good excuse for past delay" (Walton, 255 AD2d at 965 [internal quotation marks omitted]; see CPLR 2004; Cook v City of New York, 11 AD3d 424).
We conclude that plaintiffs failed to demonstrate good cause for an
extension of time in which to complete discovery, and they also failed
to present a good excuse for the delay. Plaintiffs sought to excuse the
prior delay by showing that the court's discovery deadline was
ineffective, in view of the parties' continued discovery and the
determination of an appeal after that deadline had expired. However,
the record does not support the conclusion that the court's demand
pursuant to CPLR 3216 (b) (3) was based upon plaintiffs' violation of
its discovery deadline, as opposed to the failure of plaintiffs to move
the case forward after the discovery deadline had expired. We therefore
conclude that the court did not abuse its discretion in denying the
motion. We note in any event that the order denying plaintiffs' motion
further [*2]extended the time in which to
file a note of issue and statement of readiness beyond the original
90-day deadline in the demand, and it specified that, in the event that
plaintiffs did not comply with that later deadline, the court's motion
to dismiss the complaint would be "heard" on such later date. Thus, the
order in effect gave plaintiffs yet another extension of time in which
to complete discovery.

In an action, inter alia, to recover damages for breach of contract,
the defendant Darshan Shah appeals, as limited by his brief, from so
much of an order of the Supreme Court, Kings County (Schmidt, J.),
dated May 19, 2008, as denied that branch of his motion which was, in
effect, pursuant to CPLR 3126 and CPLR 3216 to dismiss the amended
complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellant failed to demonstrate that dismissal of the amended complaint was appropriate pursuant to CPLR 3126 (cf. CPLR 3126[3]; Sisca v City of Yonkers, 24 AD3d 531, 532; DeCintio v Ahmed, 276 AD2d 463, 464), or CPLR 3216 (cf. CPLR
3216[b][3]; [e]). Accordingly, the Supreme Court properly denied that
branch of the appellant's motion which was, in effect, pursuant to
those statutes to dismiss the amended complaint insofar as asserted
against him.

"Under CPLR 305(c), an amendment to correct a misnomer will be
permitted if the court has acquired jurisdiction over the intended but
misnamed defendant . . . provided that . . . the intended but misnamed
defendant was fairly apprised that [he] was the party the action was
intended to affect . . . [and] would not be prejudiced' by allowing the
amendment" (Holster v Ross, 45 AD3d 640, 642, quoting Simpson v Kenston Warehousing Corp., 154
AD2d 526, 527). "Such amendments are permitted where the correct party
defendant has been served with process, but under a misnomer, and where
the misnomer could not possibly have misled the defendant concerning
who it was that [*2]the plaintiff was in fact seeking to sue" (Creative Cabinet Corp. of Am. v Future Visions Computer Store, 140 AD2d 483, 484-485; see Ober v Rye Town Hilton, 159 AD2d 16, 20). However, "while CPLR 305(c) may be utilized to correct the name of an existing defendant (see Benware v Schoenborn, 198 AD2d 710, 711-712), it cannot be used by a party as a device to add or substitute a party defendant (see Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d 771, 773)" (Hart v Marriott Intl., 304
AD2d 1057, 1059). A plaintiff may not invoke CPLR 305(c) to proceed
against an entirely new defendant, who was not served, after the
expiration of the statute of limitations (see Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d 771, 773).

Contrary to the plaintiff's contentions, " [t]his is not a case
where a party is misnamed . . .; rather it is a case where the
plaintiff seeks to add or substitute a party defendant'" (Achtziger v Fuji Copian Corp., 299 AD2d 946, 947, quoting Jordan v Lehigh Constr. Group, 259
AD2d 962, 962). The plaintiff failed to establish that he properly
served Carol Radin, Alvin Radin, and Radin Enterprises, LLC, the
proposed additional defendants (see Gennosa v Twinco Servs., 267 AD2d 200, 201; Feszczyszyn v General Motors Corp., 248 AD2d 939, 940; Vandermallie v Liebeck, 225
AD2d 1069, 1069). Having failed to establish that the proposed
additional defendants were properly served, the plaintiff was not
entitled to the relief he sought pursuant to CPLR 305(c) or CPLR 3025 (see Achtziger v Fuji Copian Corp., 299 AD2d at 947; Gennosa v Twinco Servs., 267 AD2d at 201; Jordan v Lehigh Constr. Group, 259 AD2d at 962; Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d at 773; Feszczyszyn v General Motors Corp., 248 AD2d at 940; Vandermallie v Liebeck, 225 AD2d at 1069).

The Supreme Court providently exercised its discretion in denying that
branch of the plaintiff's motion which was for leave to renew his
opposition to the defendant's motion for summary judgment (see Renna v Gullo, 19 AD3d 472).
A motion for leave to renew "shall be based upon new facts not offered
on the prior motion that would change the prior determination" (CPLR
2221[e][2]) and "shall contain reasonable justification for the failure
to present such facts on the prior motion" (CPLR 2221[e][3]; see Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744).
While it may be within the court's discretion to grant leave to renew
upon facts known to the moving party at the time of the original motion
(see J.D. Structures v Waldbaum, 282 AD2d 434; Cronwall Equities v International Links Dev. Corp.,
255 AD2d 354), a motion for leave to renew " is not a second chance
freely given to parties who have not exercised due diligence in [*2]making their first factual presentation'" (Renna v Gullo, 19 AD3d at 472, quoting Rubinstein v Goldman, 225 AD2d 328, 329; see also O'Dell v Caswell, 12 AD3d 492; Hart v City of New York, 5 AD3d 438; Carota v Wu,
284 AD2d 614). In this case, the plaintiff failed to provide reasonable
justification for the failure to include the affirmation of Dr. Robert
Scott Schepp on the prior motion (see Renna v Gullo, 19 AD3d at
472). In any event, that affirmation would not have changed the prior
determination awarding summary judgment to the defendant (id.).

CPLR R. 2104 Stipulations

In support of that branch of its motion which was pursuant to CPLR
3211(a)(5) to dismiss the complaint, the defendant established that the
parties entered into a stipulation of settlement through the submission
of an affidavit of its president, an agreement memorializing the
parties' agreement to settle and discontinue the instant action signed
by both parties, and a copy of the bank check referenced in the
agreement representing full settlement and satisfaction of all claims
asserted in the action (see CPLR 2104). In opposition, the
plaintiff submitted an affidavit in which he did not deny either
signing the agreement or accepting and cashing the bank check. Thus,
there was no dispute that the parties entered into a valid
"out-of-court settlement [that was] adequately described in a signed
writing" (Bonette v Long Is. College Hosp., 3 NY3d 281, 286).
Moreover, contrary to the plaintiff's contention, notwithstanding the
absence of the filing of a voluntary discontinuance under CPLR 3217,
the documentary evidence proffered in support of the motion clearly
evidenced the plaintiff's intent to release the defendant from the
action (see Gale v Citicorp, 278 AD2d 197; see also Spence v Jones, 51 AD3d 771, 772; Hanna v Ford Motor Co., 252 AD2d 478).

At trial, the plaintiff testified that she slipped on a piece of
metal covered with snow and ice. However, she could not identify the
piece of metal shown in a photograph of the accident site that had been
taken at some point after the accident. At the end of the plaintiff's
testimony, before [*2]two of her
witnesses had the opportunity to testify, the defendant New York
Transit Authority (hereinafter the defendant) moved pursuant to CPLR
4401(a) for judgment as a matter of law on the ground that the
plaintiff could not identify the cause of her fall. The court granted
the defendant's motion and dismissed the complaint insofar as asserted
against it.
The court erred in dismissing the complaint insofar as asserted
against the defendant before the plaintiff had completed her proof (see Greenbaum v Hershman, 31 AD3d 607; Balogh v H.R.B. Caterers, 88
AD2d 136, 141). The plaintiff should have been afforded the opportunity
to call her niece, who allegedly witnessed the accident, and her
expert, to testify (see Greenbaum v Hershman, 31 AD3d 607).

Contrary to the defendant's contention, the Supreme Court did not err
in denying that branch of its motion which was pursuant to CPLR
3211(a)(3) to dismiss the complaint on the ground that the plaintiff,
as a dissolved corporation, lacks the legal capacity to sue. Since the
claim underlying this suit is an alleged breach of contract which
occurred in 1998, prior to the plaintiff's dissolution, [*2]it was properly permitted to pursue that claim in the course of winding up its affairs (see Business Corporation Law § 1006[b]; Tedesco v A.P. Green Indus., Inc., 8 NY3d 243).

An order directing a judicial hearing on a motion to adjudicate a party
in contempt does not decide the motion, nor does it affect a
substantial right (see CPLR 5701[a][2][v]) and is, therefore, not appealable as a matter of right (see Sloboda v Sloboda, 24 AD3d 533, 534; Liebling v Yankwitt, 109 AD2d 780). Moreover, we decline to grant leave to appeal from the order. Accordingly, the instant appeal must be dismissed (see Kornblum v Kornblum, 34 AD3d 749, 751; Palma v Palma, 101 AD2d 812).

Plaintiff's failure to submit the clinical psychologist's opinion in
admissible form left him with no admissible medical opinion evidence to
rebut defendant's prima facie showing that she did not commit
malpractice in treating the decedent (see CPLR 2106; Sanchez v Romano, 292 AD2d 202, 203 [2002]).

The motion court properly declined to grant a stay of proceedings pending resolution of a related action in federal
court (see CPLR 2201; 952 Assoc., LLC v Palmer, 52 AD3d 236, 236-237 [2008]; Mt. McKinley Ins. Co. v Corning Inc., 33 AD3d 51,
58-59 [2006]). Defendants are former executives and/or directors of
plaintiff American International Group, Inc. (AIG), the defendant in
the federal action; they are current and/or former directors and/or
voting shareholders of the plaintiff in the federal action, Starr
International Co., Inc. (SICO). In the federal action, AIG asserted [*2]counterclaims
against SICO arising out of SICO's alleged obligations to AIG in
connection with certain stock. AIG's allegations herein arise out of
defendants' alleged independent fiduciary duties to AIG by virtue of
their express pledges to preserve the value of said stock. A finding as
to SICO's duty to AIG would not affect defendants' potential liability
as independent fiduciaries of AIG and would not dispose of or
significantly limit the issues involved in this action or pose a risk
of inconsistent rulings (see Belopolsky v Renew Data Corp., 41 AD3d 322 [2007]); Asher v Abbott Labs., 307 AD2d 211 [2003]).

Appeal from order, Family Court, New York County (Susan K. Knipps,
J.), entered on or about April 23, 2008, which, in a child neglect
proceeding, upon respondent-appellant parent's failure to submit papers
in opposition to petitioner ACS's motion pursuant to Family Court Act §
1039-b(b)(6) for a finding that reasonable efforts to return the child
to his home are not required, reserved decision on the motion in order
to afford appellant an opportunity to submit evidence in support of his
position that a hearing on reasonable efforts is required, unanimously
dismissed, without costs.

In opposition to the motion, which was based on the existence
of judgments involuntarily terminating respondents' parental rights to
other of their children, appellant submitted no evidence but simply
argued that due process necessarily required a hearing. The order on
appeal, however, makes no ruling one way or the other as to whether
there will be a hearing. While the order does determine that the
judgments terminating parental rights satisfied petitioner's initial
burden on the motion, and that the burden was thereby placed on
respondents to come forward with evidence raising issues of fact
bearing on the other inquires to be made on a section 1039-b(b)(6)
motion — whether providing reasonable efforts would be in the child's
best interests, not contrary to the child's health and safety, and
likely to result in reunification of parent and child in the
foreseeable future — the order makes no findings of fact. Instead, it
affords appellant and his co-respondent an additional opportunity to
submit evidence pertinent to these other inquiries, and sets a briefing
schedule and a new return date. To the extent the order reserves
decision on the [*2]motion, it is not appealable as of right (CPLR 5701[a][2]; see Granato v Granato, 51 AD3d 589,
590 [2008]); to the extent the order imposes a burden on appellant to
come forward with evidence, at this juncture, absent a finding
dispensing with reasonable efforts, appellant is not aggrieved thereby
(CPLR 5511).

Denial of renewal was proper because this evidence was available at the
time of the initial motion, and the failure to submit it was
unexplained (see Matter of Beiny, 132 AD2d 190, 210 [1987], lv dismissed 71 NY2d 994 [1988]). In any event, the purportedly new evidence would not have altered the initial determination (see NYCTL 1999-1 Trust v 114 Tenth Ave. Assoc., Inc., 44 AD3d 576 [2007], appeal dismissed 10 NY3d 757 [2008], cert denied __ US __, 129 S Ct 458 [2008]). Leave to amend was properly denied since the counterclaims had already been [*2]dismissed. We further note that the proposed amendment was unsupported by an affidavit of merit (see Schulte Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]) or a verified pleading (CPLR 105[u]).

Although the first amended complaint did not expressly refer to the
underground foundation wall, it did not limit defendant's purported
encroachment to the installation of underpinning but included "other
encroaching subsurface structures." Thus, the language in the first
amended complaint, which envisioned the possibility of other subsurface
structures, was sufficiently broad to encompass the encroachment
subsequently discovered through the land survey. The proposed new
pleading does not, therefore, assert a new and distinct claim but,
instead, is based upon the same conduct, transaction or occurrence as
that asserted in the first amended complaint (see CPLR 203[f]).

Furthermore, since the proposed new defendant, Condominium,
which now owns the building, is the successor-in-interest to the
sponsor, Madison 96th Associates, LLC, and not merely an unrelated
party with no notice of the subject litigation, plaintiff should also
have been permitted to add Condominium as a defendant.

This action for wrongful death, medical malpractice and medical
negligence was commenced in 2000. In October 2004, defendants served a
90-day notice (CPLR 3216[b][3]) demanding that plaintiff resume
prosecution, complete discovery and file a note of issue. Plaintiff
acknowledges "technically" having failed to respond to this notice and
instead serving discovery demands upon defendants in July 2005,
thereafter attempting to commence settlement negotiations. Defendants
served their motion to dismiss in August 2007.

CPLR 3216(e) permits a court to dismiss an action for want of
prosecution after the defendants have served the plaintiff with an
unheeded 90-day notice, absent a showing of justifiable excuse for the
delay and a good and meritorious cause of action. Since the notice was
properly served and plaintiff never explained her delay or demonstrated
merit in the form of a detailed affidavit from a medical expert, the
court's refusal to dismiss was an improvident exercise of discretion (see Mosberg v Elahi, 80 NY2d 941 [1992]; Ramos v Lapommeray, 135 AD2d 439 [1987]). The certificate of merit filed by plaintiff's counsel in October 2000 was not a [*2]valid substitute for a medical expert's affidavit (see Jackson v Bronx County Lebanon Hosp. Ctr., 7 AD3d 356 [2004]).