Commercial Division Blog

Posted: September 29, 2020 / Categories Commercial, Court Rules/Procedures

Action Dismissed for Failure to File Note of Issue

On September 16, 2020, the Second Department issued a decision in Pavilion Park Slope Cinemas 9, LLC v. Pro Century Corp., 2020 NY Slip Op. 04958, affirming the dismissal of an action for failure to file a Note of Issue, explaining:

Where, as here, the plaintiff is served with a 90-day demand pursuant to CPLR 3216, the plaintiff is required to timely file a note of issue or move, before the default date, either to vacate the demand or for an extension of the 90-day period. The plaintiff failed to do either within the 90-day period and therefore, to avoid dismissal of the complaint for failure to prosecute, it was required to demonstrate a justifiable excuse, as well as a potentially meritorious cause of action. The plaintiff failed to demonstrate a justifiable excuse, as it failed to rebut the evidence that the 90-day demand was properly mailed to and received by its attorney of record. Further, its claims of law office failure were conclusory and unsubstantiated. Accordingly, the Supreme Court providently exercised its discretion in granting the motion of the defendant ProCentury Insurance Company, incorrectly sued as Pro Century Corp., to dismiss the complaint insofar as asserted against it. As the plaintiff did not provide a justifiable excuse, there is no need to determine whether the plaintiff established the existence of a potentially meritorious cause of action.

(Internal citations omitted).

New York procedural law (including the special rules applying to litigation in the Commercial Division of the New York courts) is not particularly complex. Still, there are procedural rules and as this decision illustrates, if a litigant ignores them, it can pay a high price. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding New York practice, and particularly regarding the rules governing practice in the Commercial Division.