Builders Mechanic Co. v. Claiborne

Nov 6, 2000
Versions:277 A.D.2d 193
715 N.Y.S.2d 871
2000 N.Y. App. Div. LEXIS 11225

—In an action, inter alia, to foreclose a mechanic’s lien, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated August 10, 1998, as granted the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint and vacate the mechanic’s lien.

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

“In order to avoid a default, a plaintiff served with a 90 day notice pursuant to CPLR 3216 must comply either by timely filing a note of issue or moving for an extension of time within which to comply pursuant to CPLR 2004 (see, Papadopoulas v R.B. Supply Corp., 152 AD2d 552). Having failed to pursue either of the foregoing options, the plaintiff was obligated to demonstrate a reasonable excuse and a meritorious cause of action to avoid the sanction of dismissal (see, CPLR 3216 [e]; Papadopoulas v R.B. Supply Corp., supra)” (Neu v Paul Realty Co., 260 AD2d 615, 616; see, Russo v Automotive Rentals, 247 AD2d 603). As the plaintiff failed to establish a reasonable excuse for its failure to timely serve and file a note of issue, or to move pursuant to CPLR 2004 for an extension of time within which to comply, the Supreme "Court providently exercised its discretion by granting the defendant’s motion to dismiss the complaint pursuant to CPLR 3216. Krausman, J. P., Florio, Luciano and Schmidt, JJ., concur.