Cite as: Rose v. 735 Realty Co. LLC., 570908/10, NYLJ 1202588423312, at *1 (App. Tm., Decided August 28, 2012)

Before: Shulman, J.P., Hunter, Jr., Torres, JJ.

Decided: August 28, 2012




Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 8, 2011, which denied her motion to vacate a prior order dismissing the complaint pursuant to CPLR 3216.


Order (Elizabeth A. Taylor, J.), entered July 8, 2011, affirmed, with $10 costs.

Nearly four years after commencement of this slip and fall action, plaintiff was served with a written 90-day demand to resume prosecution by filing a notice of trial (see CPLR 3216[b][3]). In response, plaintiff neither filed a notice of trial, nor moved to vacate the demand or extend the time for compliance, inaction which resulted in the




dismissal of the complaint pursuant to CPLR 3216(a). Approximately one year later, plaintiff filed the instant motion to vacate the dismissal order. Such relief was properly denied, since plaintiff failed to demonstrate a reasonable excuse for the extensive delays in prosecuting the action both before and after the demand (see Walker v. City of New York, 46 AD3d 278, 280 [2007]; Garcia v. Del Pacifico, 299 AD2d 188 [2002]). Plaintiff's claimed reliance on an unnamed court employee's purported advice that the demand was not valid did not constitute a reasonable excuse (see Caraballo v. Montefiore Med. Ctr., 89 AD3d 638 [2011]), particularly in view of plaintiff's pattern of dilatory behavior in prosecuting the case (Cato v. City of New York, 70 AD3d 471 [2010]; Perez v. New York City Hous. Auth., 47 AD3d 505 [2008]). As plaintiff failed to offer a reasonable excuse for the failure to prosecute, we need not address whether she provided sufficient evidence to establish the existence of a meritorious cause of action (see Michaels v. Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021, 1024 [2009]).