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  • Ana Padilla, Miguel Martel, Humberto Calero, Madeline Padilla v. L. Riso & Sons, Co., Inc. Tort document preview
  • Ana Padilla, Miguel Martel, Humberto Calero, Madeline Padilla v. L. Riso & Sons, Co., Inc. Tort document preview
  • Ana Padilla, Miguel Martel, Humberto Calero, Madeline Padilla v. L. Riso & Sons, Co., Inc. Tort document preview
						
                                

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FILED: KINGS COUNTY CLERK 05/11/2018 06:36 PM INDEX NO. 508343/2013 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 05/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS — — -------------------------------------------------------------------X Index No. 508343/13 ANA PADILLA, MIGUEL MARTEL, HUMBERTO CALERO and MADELINE PADILLA, . Plaintiffs, AFFIRMATION IN OPPOSITION -against- L. RISO & SONS CO., INC. Defendant. X -------------------------------------------------------------------X L. RISO & SONS CO., INC. Third-Party Plaintiff, -against- T&D ASSOCIATES and MARINE BULKEHEADING, Third-Party Defendants. -------------------------------------------------------------------X STATE OF NEW YORK COUNTY OF KINGS Solomon Rosengarten, an attorney admitted to practice in the courts of the State of New York, affirms the following under penalty of perjury: 1. I am the attorney for the plaintiffs in the above-entitled matter, am fully familiar with the facts set forth herein and submit this affirmation in opposition to the defendant's cross- motion to dismiss this action pursuant to CPLR 3216 and in reply to its opposition to plaintiffs' motion. 2. The cross-motion lacks merit. PRE-NOTE" 3. On October 14, 2016, the case was marked "OTHER FINAL DISP. (Exhibit "A"). 1 of 3 FILED: KINGS COUNTY CLERK 05/11/2018 06:36 PM INDEX NO. 508343/2013 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 05/11/2018 "disposed," 4. Since the action was marked a 90 day notice pursuant to CPLR 3216 had no effect. (2nd 5. In Deutsche Bank Nat1. Trust Co. v. Gambino, 153 A.D.3d 1232 Dept. 2017), the "Disposed- Pre-Note" Appellate Division held that when a case is marked it constitutes an administrative dismissal. days' 6. Consequently, the service of a 90 notice cannot be effectual. days' 7. Since the 90 notice was not effective, the motion to restore the case must be grated. issue," 8. It is well settled that when an action is marked "disposed pre-note of itmust be restored. Bilkho v. Roosevelt Square, LLC, A.D.3d , 2018 NY Slip Op 400 (2nd (2nd Dept. 2018); Kapnisakis v. Woo, 114 A.D.3d 729 Dept. 2014); Lopez v. (2nd 2001).1 Imperial Delivery Serv., 282 AD2d 190, 198 Dept. 2001). 9. Moreover, once an action is restored, it is restored to pre-note of issue status. Bilkho v. Roosevelt Square, LLC, supra. 10. In any event, as set forth in defendant's papers, 90 day notice pursuant to CPLR 3216 was served by defendant on or about October 17, 2017. (Paragraph 13 of affirmation of Louis F. Eckert). 11. On January 15, 2018, plaintiffs filed a Note of Issue (Exhibit "B"). 12. The Note of Issue was rejected by the Clerk because the action had been marked "disposed." disposed. 13. Thus, even if the 3216 notice were valid, plaintiffs filed the Note of Issue within ninety days of the service of the ninety day notice. 1 Although defendant also assertsthatplaintiffshave not complied with discovery demands, the onlyreliefitseeks isdismissal pursuant to CPLR 3216. 2 of 3 FILED: KINGS COUNTY CLERK 05/11/2018 06:36 PM INDEX NO. 508343/2013 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 05/11/2018 14. This satisfies the requirements of CPLR 3216, which specifically provides in subdivision (c) that "In the event that the party upon whom is served the demand specified in subdivision (b) (3) of this rule serves and files a note of issue within such ninety day period, the same shall be deemed sufficient compliance with such demand and diligent prosecution of the action. 15. The fact that itwas rejected by the Clerk does not change the fact that plaintiffs did what was required of them if the 3216 notice were valid. 16. Finally, in deciding a motion to dismiss pursuant to CPLR 3216, the Court must bear in forgiving" mind that CPLR 3216 is an "extremely statute, Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499 (1997), which never requires, but merely authorizes, the (2nd Supreme Court to dismiss an action. Altman v. Donnenfeld, 119 A.D.3d 828 Dept. 2014). "disposed" 17. In light of the fact that the case was marked when the 3216 notice was served plaintiff's' and attempt to file a Note of Issue, the Court should exercise itsdiscretion and deny the cross-motion to dismiss. forgiving" 18. Furthermore, in light of the "extremely nature of CPLR 3216, if the Court dismisses the action, such a dismissal should be without prejudice. WHEREFORE, the undersigned respectfully submits that defendant's cross-motion be denied and plaintiff's motion to restore this action to the active calendar be granted. Dated: Brooklyn, New York May 11, 2018 Satemen ‰engaden SOLOMON ROSENGARTEN 3 of 3