Comeau v McClacken

[*1] Comeau v McClacken 2004 NY Slip Op 51455(U) Decided on November 22, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 22, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-198 K C

MUSSETT COMEAU, Respondent,

against

ANGELA McCLACKEN and URIEL McCLACKEN, Appellants.

Appeal by defendants from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered on November 18, 2003, which granted plaintiff's motion to vacate a prior order, entered on January 3, 2003, granting on default defendants' motion to dismiss the complaint pursuant to CPLR 3216.

Order unanimously reversed without costs and plaintiff's motion to vacate the order entered on January 3, 2003 denied.

Plaintiff failed to timely comply with defendants' 90-day notice pursuant to CPLR 3216. Plaintiff, therefore, was required to establish a justifiable excuse for her delay in complying with defendants' demand and a meritorious cause of action (see Storchevoy v Blinderman, 303 AD2d 672 [2003]; Douglas v J. C. Penny Co., 2 Misc 3d 134 [A], 2004 NY Slip Op 50192 [U] [App Term, 2d & 11th Jud Dists]). While law office failure may constitute a reasonable excuse for failure to comply with said demand (Storchevoy, 303 AD2d at 673), plaintiff has failed to proffer any explanation for the delay in filing the notice of trial (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997]; Blackman v Meo, 284 AD2d 711, 712 [2001]). [*2]

Moreover, plaintiff failed to demonstrate the existence of a meritorious cause of action. Plaintiff failed to submit competent evidentiary proof to establish "serious injury" within the meaning of Insurance Law § 5102 (d) (see LaMacchia v Rogers, 8 AD3d 346 [2004]; Sarot v Yusufov, 301 AD2d 512 [2003]; Mizrachy v Jordan, 282 AD2d 210 [2001]; Gache v Incorporated Vil. of Freeport, 202 AD2d 470 [1994]; see also Sharp v Lebron, 282 AD2d 733 [2001]; Waaland v Weiss, 228 AD2d 435 [1996]).

Under these circumstances, plaintiff's motion to vacate the prior order which granted on default defendants' motion to dismiss the action pursuant to CPLR 3216 should have been denied.

We note that while plaintiff mentioned in her affidavit in support of the motion to vacate that she sustained property damage in the sum of $5,039, she set forth no cause of action therefor in the complaint.
Decision Date: November 22, 2004