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McDonald v. Montefiore Medical Center

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 24, 2009

DIANA MCDONALD, PLAINTIFF-APPELLANT,
v.
MONTEFIORE MEDICAL CENTER, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered October 26, 2007, which granted defendants' motions to dismiss the complaint for failure to prosecute, and denied plaintiff's cross motion to vacate or extend the CPLR 3216 notice served by the court, unanimously affirmed, without costs.

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.

Saxe, J.P., Friedman, Sweeny, Renwick, Freedman, JJ.

14944/01

The subject notice (in which the court crossed out the number 90 and inserted the number 120) was issued after the fifth pre-note of issue conference and sixth pre-note of issue order pertaining to disclosure. While plaintiff's attorney offered some compelling personal reasons for the general pre-notice delay, the only specific excuse he gave, in an affirmation submitted after the 120-day period had already run, for not being able to meet the 120-day deadline was his office's relocation during the 120-day period. Such excuse did not demonstrate good cause for the requested extension of the already extended notice. While plaintiff contends that defendants were themselves noncompliant with the prior disclosure orders, and that such noncompliance was preventing her from filing a note of issue, she had her remedies during the lengthy period of general delay (CPLR 3124, 3126), and no basis exists to disturb the motion court's finding that plaintiff's laxity and delay were "wanton."

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090324

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