Davis v Cliffside Rehabilitation & Residential Healthcare Ctr.

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[*1] Davis v Cliffside Rehabilitation & Residential Healthcare Ctr. 2019 NY Slip Op 51767(U) Decided on October 29, 2019 Supreme Court, Bronx County Capella, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2019
Supreme Court, Bronx County

Lucy Davis, as Administrator of the Estate of BETTY DAVIS, deceased, Plaintiff,


Cliffside Rehabilitation & Residential Healthcare Center, CLIFFSIDE NURSING HOME, INC., and FLUSHING HOSPITAL MEDICAL CENTER, Defendants.


Plaintiff's Attorney:

Cybele S. Louis, Esq.


6 Harbor Park Drive

Port Washington, New York 11050



Leonard Gekham, Esq.


200 Old County Road - Suite 340

Mineola, New York 11501




220 East 42nd Street

New York, New York 10017

Joseph E. Capella, J.

The following papers numbered 1 to 3 read on this motion duly submitted October 28, 2019.






By notice of motion dated June 25, 2019, plaintiff seeks to vacate the "90-Day Notice" dated March 20, 2019 (CPLR 3216), served by defendants, CLIFFSIDE REHABILITATION & RESIDENTIAL HEALTHCARE CENTER and CLIFFSIDE NURSING HOME, INC. (collectively referred to as CLIFFSIDE), or alternatively, an extension of time to file a "Note of Issue" (CPLR § 2004). CPLR 3216 provides a defendant confronted with a less than diligent plaintiff a means to expedite the prosecution of the action by serving a written notice upon plaintiff demanding that a Note of Issue be filed within 90 days (90-Day Notice), or in the event of a default, risk dismissal of the action. (Carte v Segall, 134 AD2d 397 [2nd Dept 1987].) A plaintiff confronted with a 90-Day Notice can avoid a default by either timely filing a Note of Issue, or serving a motion that seeks to either vacate the 90-Day Notice or extend the time within which to comply (CPLR § 2004). (Brady v Benenson, 2 AD3d 382 [2nd Dept 2003].) Upon failure to file a Note of Issue or motion within the 90 day time period, plaintiff may still avoid dismissal by demonstrating both a reasonable excuse for the default and the existence of a meritorious cause of action. (Garcia v Roopnarine, 18 AD3d 607 [2nd Dept 2005].) In order to demonstrate a meritorious cause of action, an affidavit or affirmation of merit from one with personal knowledge of the facts is required. (Duqmaq v Stewart, 137 AD2d 653 [2nd Dept 1988].) It must be noted, however, that if a motion is made prior to the expiration of the prescribed period to respond, then an affidavit or affirmation of merit is not required (Carte, 134 AD2d 397; Grant v City of New York, 17 AD3d 215 [1st Dept 2005]).

The motion papers do not reflect how the 90-Day Notice was served or what specific date it was received.[FN1] However, plaintiff concedes that CLIFFSIDE "served a third 90-day notice on [plaintiff's] law firm on or about (emphasis added) March 20, 2019." It was incumbent upon plaintiff as the movant to establish that it made the instant motion within the 90-day period, which if true, could easily have been done by providing the Court with the specific date it received the 90-Day Notice. Instead, plaintiff cryptically refers to "on or about March 20, 2019." Ninety days from March 20, 2019, is June 19, 2019, and the instant motion was made six days [*3]later on June 25, 2019. Given the aforementioned, the Court finds that the instant motion by plaintiff was made after the 90-day period expired. As such, plaintiff must provide both a reasonable excuse for the default and an affidavit or affirmation of merit which set forth the existence of a meritorious cause of action. (Garcia, 18 AD3d 607.) Addressing first the existence of a meritorious cause of action, it must be noted that there is no affirmation or affidavit of merit included with plaintiff's motion. Neither the attorney affirmation in support of the motion, nor the complaints and bill of particulars (none of which are verified by plaintiff) annexed as exhibits to the motion were based on personal knowledge of the facts. (Duqmaq, 137 AD2d 653; Garcia, 18 AD3d 607.) In addition, the "Certificate of Merit" in which plaintiff's attorney certifies that he "consulted with at least one physician . . . [to] conclude on the basis of such . . . consultation that there is a reasonable basis for the commencement of this [medical malpractice] action," is based on the hearsay statements of said doctor. None of the aforementioned is adequate enough to establish the meritorious nature of this action, and as such, there is no need to address plaintiff's alleged reasonable excuse for the delay. Based on the aforementioned, plaintiff has not meet her burden of establishing a basis to vacate the 90-Day Notice or to extend the time to file a Note of Issue, and the instant motion by plaintiff is denied accordingly. Oddly enough, CLIFFSIDE only opposed the instant motion and did not cross-move to dismiss pursuant to CPLR 3216. Therefore, this action shall still appear on this Court's conference calendar at 2:15 p.m. on Monday, November 25, 2019. Plaintiff is directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of same.

This constitutes the decision/order of this court.

Dated October 29, 2019


Joseph E. Capella, J.S.C. Footnotes

Footnote 1:There was no memo of law included in any of the motion papers, and instead the attorney affirmations were replete with legal arguments. Counsel are reminded that "[a]ttorneys should not discuss cases in attorney's affirmations . . . [they must argue] the law in separate memorandums of law." (McKinney's Forms Civil Practice Law and Rules § 5.18(d); see 22 NYCRR § 202.8(c); Armendariz v Tiramisu, 170 AD2d 334 [1st Dept 1991].) An attorney affirmation should briefly summarize counsel's legal position, and avoid citing case law. As clearly set forth in the NY Uniform rules, affidavits and attorney affirmations shall be for a statement of those relevant facts which they have knowledge of, and briefs/memos of law shall be for a statement of the relevant law. (22 NYCRR § 202.8(c).)

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