Opinion
2011-11-1
Dock A. COPE, appellant,v.Aatif BARAKAAT, et al., defendants, Olabanji Awosika, et al., respondents.
Joseph A. Altman, P.C., Bronx, N.Y., for appellant.Lazarowitz & Manganillo, LLP, Brooklyn, N.Y. (Philip M. Hines of counsel), for respondent Olabanji Awosika.Donald G. Davis, New York, N.Y., for respondent Greenpoint Mortgage Funding, Inc.
In an action, inter alia, to set aside a deed, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Schneier, J.), dated May 21, 2010, which granted the motion of the defendant Olabanji Awosika pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against that defendant for failure to prosecute and denied his cross motion to restore the action to the pre-note of issue calendar, and (2) an order of the same court dated October 1, 2010, which granted the separate motion of the defendant Olabanji Awosika to cancel two notices of pendency filed in connection with the subject real property and denied his separate cross motion, inter alia, for leave to renew his opposition to the motion of the defendant Olabanji Awosika pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against that defendant for failure to prosecute.
ORDERED that the order dated May 21, 2010, is affirmed; and it is further,
ORDERED that the appeal from the order dated October 1, 2010, is dismissed; and it is further,
ORDERED that one bill of costs is awarded to the defendants Olabanji Awosika and Greenpoint Mortgage Funding, Inc., payable by the plaintiff.
The appeal from the order dated October 1, 2010, must be dismissed. It is the obligation of the appellant to assemble a proper record on appeal ( see Udell v. Naghavi, 82 A.D.3d 960, 919 N.Y.S.2d 79; LaSalle Bank N.A. v. Henderson, 69 A.D.3d 679, 891 N.Y.S.2d 655; Wen Zong Yu v. Hua Fan, 65 A.D.3d 1335, 885 N.Y.S.2d 605). That record “must contain all of the relevant papers that were before the Supreme Court” ( LaSalle Bank N.A. v. Henderson, 69 A.D.3d at 680, 891 N.Y.S.2d 655 [internal quotation marks omitted]; see CPLR 5526; Wen Zong Yu v. Hua Fan, 65 A.D.3d at 1335, 885 N.Y.S.2d 605). Here, although the plaintiff appealed from the order dated October 1, 2010, granting the motion of the defendant Olabanji Awosika to cancel two notices of pendency filed in connection with certain real property that is the subject of this action and denying his cross motion, inter alia, for leave to renew his opposition to Awosika's separate motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him, which had been determined in an order dated May
21, 2010, the plaintiff has not included, in the record, any of the papers submitted in opposition to the cross motion or reply papers submitted in connection with the motion. Inasmuch as the record is inadequate to review the order dated October 1, 2010, we dismiss the appeal from that order ( see Udell v. Naghavi, 82 A.D.3d 960, 919 N.Y.S.2d 79; LaSalle Bank N.A. v. Henderson, 69 A.D.3d 679, 891 N.Y.S.2d 655; Wen Zong Yu v. Hua Fan, 65 A.D.3d at 1335, 885 N.Y.S.2d 605).
Having been served with a 90–day notice pursuant to CPLR 3216, the plaintiff was required to file a note of issue in compliance with the notice or to move, before the default date, either to vacate the notice or to extend the 90–day period pursuant to CPLR 2004 ( see Gagnon v. Campbell, 86 A.D.3d 623, 624, 927 N.Y.S.2d 602; Sanchez v. Serje, 78 A.D.3d 1155, 1156, 913 N.Y.S.2d 919; Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395). The plaintiff did none of these. The plaintiff's mere service of a note of issue upon the defendants was insufficient to comply with the statute ( see CPLR 3216[b] ). Thus, to avoid dismissal of the complaint, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action ( see CPLR 3216[e]; Dominguez v. Jamaica Med. Ctr., 72 A.D.3d 876, 898 N.Y.S.2d 869; Picot v. City of New York, 50 A.D.3d 757, 757–758, 855 N.Y.S.2d 237; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119). The plaintiff failed to tender a justifiable excuse for his failure to comply with the 90–day notice ( see Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 504, 655 N.Y.S.2d 848, 678 N.E.2d 460), or for his inordinate delay in the prosecution of this action ( see Picot v. City of New York, 50 A.D.3d at 758, 855 N.Y.S.2d 237; Ovchinnikov v. Joyce Owners Corp., 43 A.D.3d 1124, 1127, 843 N.Y.S.2d 345; Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119). Furthermore, the plaintiff failed to submit any affidavit of merit ( see Picot v. City of New York, 50 A.D.3d 757, 855 N.Y.S.2d 237; Burke v. Klein, 269 A.D.2d 348, 348–349, 703 N.Y.S.2d 203). The proposed amended complaint submitted in opposition to Awosika's motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him for failure to prosecute did not have a verification and, therefore, could not be utilized as an affidavit ( cf. CPLR 105[u] ). Accordingly, the Supreme Court properly granted Awosika's motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him. For the same reasons, the plaintiff's cross motion to restore the action to the pre-note of issue calendar was properly denied ( see CPLR 5015[a][1]; Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 197, 725 N.Y.S.2d 57; cf. Dorio v. County of Suffolk, 58 A.D.3d 594, 595, 871 N.Y.S.2d 369).
RIVERA, J.P., FLORIO, AUSTIN and SGROI, JJ., concur.