Mega Contracting, Inc. v. Adventure Masonry Corp.

188 A.D.3d 664

134 N.Y.S.3d 395

MEGA CONTRACTING, INC., et al., appellants,

v.ADVENTURE MASONRY CORP., respondent, et al., defendant.

2018–13609

Index No. 503330/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 5, 2020

November 4, 2020

Hollander Law Group, PLLC, Great Neck, N.Y. (Michael R. Strauss of counsel), for appellants.

Marshall Conway Bradley Gollub & Weissman, P.C., New York, N.Y. (Lauren R. Turkel of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and negligence, the plaintiffs appeal from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated October 4, 2018. The order granted the motion of the defendant Adventure Masonry Corp. pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it, and denied the plaintiffs' cross motion to amend an order of the same court dated May 16, 2016, and to restore the action to the calendar.

ORDERED that the order dated October 4, 2018, is affirmed, with costs.

In April 2014, the plaintiffs commenced this action, inter alia, to recover damages for breach of contract and negligence. The defendant Adventure Masonry Corp. (hereinafter Adventure) answered the complaint. The plaintiffs and Adventure engaged in motion practice and exchanged certain discovery demands and responses. On May 16, 2016, the Supreme Court entered a compliance order which, among other things, directed the plaintiffs to file a note of issue on or before October 14, 2016, and noted that if they did not the action "may be dismissed." The plaintiffs attempted to file a note of issue on October 28, 2016, two weeks after the court-imposed deadline. The note of issue was returned for correction and the action was marked disposed.

The action remained dormant for approximately 14 months, until December 26, 2017, when Adventure served the plaintiffs with a notice and demand pursuant to CPLR 3216, demanding resumption of the prosecution of the action and the service and filing of a note of issue within 90 days (hereinafter the 90–day notice). The plaintiffs did not serve and file a note of issue and did not move to vacate the 90–day notice or to extend the 90–day period. In April 2018, Adventure moved pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against it. The plaintiffs cross-moved to amend the compliance order to extend their time to file a note of issue and to restore the action to the active calendar. The Supreme Court granted Adventure's motion and denied the plaintiffs' cross motion. The plaintiffs appeal.

Where, as here, plaintiffs are served with a 90–day notice pursuant to CPLR 3216, those plaintiffs are required to timely file a note of issue or move, before the default date, either to vacate the 90–day notice or to extend the 90–day period (see HSBC Bank USA, N.A. v. Williams , 177 A.D.3d 950, 952, 111 N.Y.S.3d 654 ). The plaintiffs here failed to do so within the 90–day period. Therefore, in order to excuse the default, the plaintiffs were required to demonstrate a justifiable excuse for their failure to take timely action in response to the 90–day notice, as well as a potentially meritorious cause of action (see Baczkowski v. Collins Constr. Co. , 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ; HSBC Bank USA, N.A. v. Williams , 177 A.D.3d at 952, 111 N.Y.S.3d 654 ).

The determination of what constitutes a reasonable excuse lies within the court's discretion (see HSBC Bank USA, N.A. v. Izzo , 177 A.D.3d 648, 649, 109 N.Y.S.3d 886 ). "Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005 ), a claim of law office failure should be supported by a detailed and credible explanation of the default at issue" ( HSBC Bank USA, N.A. v. Izzo , 177 A.D.3d at 649, 109 N.Y.S.3d 886 [internal quotation marks omitted]; see People's United Bank v. Latini Tuxedo Mgt., LLC , 95 A.D.3d 1285, 1286, 944 N.Y.S.2d...