Gannon v Juliano

Gannon v Juliano 2012 NY Slip Op 03404 Decided on May 1, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 1, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2010-06064
(Index No. 14611/06)

[*1]Thomas Gannon, appellant,

v

Nicholas Juliano, defendant, Anthony Armenia, respondent.




Harry H. Kutner, Jr., Mineola, N.Y. (Kenneth L. Gartner of
counsel), for appellant.
Gold, Stewart, Benes, LLP (Sweetbaum & Sweetbaum, Lake
Success, N.Y. [Marshall D.
Sweetbaum and Joel A. Sweetbaum], of
counsel), for respondent.


DECISION & ORDER

In an action to recover damages for assault and battery, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered May 4, 2010, as denied his renewed motion to vacate the dismissal of the action pursuant to CPLR 3216 and for leave to serve and file a late note of issue, and denied, as academic, the cross motion of the defendant Anthony Armenia for recusal.

ORDERED that the appeal from so much of the order entered May 4, 2010, as denied, as academic, the cross motion of the defendant Anthony Armenia for recusal is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511); and it is further,

ORDERED that the order entered May 4, 2010, is reversed insofar as reviewed, on the facts and in the exercise of discretion, without costs or disbursements, and the plaintiff's renewed motion to vacate the dismissal of the action pursuant to CPLR 3216 and for leave to serve and file a late note of issue is granted.

To vacate the dismissal of the action, the plaintiff was required to demonstrate a justifiable excuse for his delay in filing a note of issue within 90 days of a certification order as directed, and the existence of a potentially meritorious cause of action (see CPLR 3216[e]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; M.V.B. Collision, Inc. v Berman, 86 AD3d 534, 534-535; Fenner v County of Nassau, 80 AD3d 555, 556; Rodriguez v Five Towns Nissan, 69 AD3d 833, 834). Here, the plaintiff did so. Accordingly, the Supreme Court should have granted the plaintiff's renewed motion to vacate the dismissal of the action pursuant to CPLR 3216 and for leave to serve and file a late note of issue.
RIVERA, J.P., LEVENTHAL, ROMAN and COHEN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court