Preview
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
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ANA PADILLA, MIGUEL MARTEL, HUMBERTO
CALERO and MADELINE PADILLA, .
Plaintiffs, AFFIRMATION IN
OPPOSITION
-against-
L. RISO & SONS CO., INC.
Defendant.
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L. RISO & SONS CO., INC.
Third-Party Plaintiff,
-against-
T&D ASSOCIATES and MARINE BULKEHEADING,
Third-Party Defendants.
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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").
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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.
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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
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