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Cox v. Edmister

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 11, 1986
122 A.D.2d 557 (N.Y. App. Div. 1986)

Opinion

July 11, 1986

Appeal from the Supreme Court, Niagara County, Gossel, J.

Present — Dillon, P.J., Callahan, Boomer, Balio and Lawton, JJ.


Order unanimously reversed, on the law, without costs, and motions granted. Memorandum: Our court has been consistent in holding that, to defeat a motion to dismiss pursuant to CPLR 3216, plaintiff must show a justifiable excuse for failure to file a note of issue within the 90-day period and a meritorious cause of action (see, e.g., Highlands Ins. Co. v Maddena Constr. Co., 109 A.D.2d 1071, 1072; MacLeod v Nolte, 106 A.D.2d 860; Jones v First Fed. Sav. Loan Assn., 101 A.D.2d 1005; Abrams, Kochman, Rathskeller v Esquire Motels, 79 A.D.2d 879). On this record, plaintiff has failed to show either a justifiable excuse or that he has a meritorious cause of action. Absent such a showing, it was an abuse of discretion for Special Term to deny the motion (MacLeod v Nolte, supra).

Plaintiff's reliance on our decision in Foisy v Penn Aluminum ( 31 A.D.2d 783) is misplaced. In Foisy we were concerned only with general delay.


Summaries of

Cox v. Edmister

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 11, 1986
122 A.D.2d 557 (N.Y. App. Div. 1986)
Case details for

Cox v. Edmister

Case Details

Full title:HERBERT G. COX, Respondent, v. WALTER H. EDMISTER et al., Appellants

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 11, 1986

Citations

122 A.D.2d 557 (N.Y. App. Div. 1986)

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