Friday, June 13, 2014

A certification order to file a note of issue, and dismissal.

Practice point:  In a certification order, the Supreme Court directed the plaintiff to file a note of issue within 90 days, and warned that the action would be deemed dismissed without further order of the court if the plaintiff failed to comply with that directive. Counsel for the plaintiff signed the order, acknowledging receipt thereof. Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue. The plaintiff did neither, and the Appellate Division found that the the action was properly dismissed pursuant to CPLR 3216.

Student note:  The certification order had the same effect as a valid 90-day notice pursuant to CPLR 3216.

Case:  Dai Mang Kim v. Hwak Yung Kim, NY Slip Op 03972 (2d Dept. 2014)

Here is the decision.

Monday's issue: Notice and res ipsa in a personal injury action.