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Miranda v. Town of Blooming Grove
Citations: 254 A.D.2d 397; 678 N.Y.S.2d 740; 1998 N.Y. App. Div. LEXIS 11092
Court: Appellate Division of the Supreme Court of the State of New York; October 19, 1998; New York; State Appellate Court
In a wrongful death action, the plaintiffs appealed from an order and judgment of the Supreme Court, Orange County, which granted the defendant’s motion to dismiss the complaint under CPLR 3216. The appeal from the order is dismissed because the right to directly appeal terminated with the entry of judgment. The judgment, which dismissed the complaint, is affirmed, and the respondent is awarded costs. The defendant served a 90-day notice demanding the plaintiffs to file a note of issue to calendar the case. Plaintiffs failed to comply with this notice by not filing the note or moving to vacate or extend the period. Consequently, to avoid dismissal, they needed to demonstrate a justifiable excuse for their noncompliance and establish a good and meritorious cause of action. Even if the plaintiffs' excuse for noncompliance were accepted, they did not show any valid cause of action, leading to the proper dismissal of their complaint. Judges Pizzuto, Joy, Florio, and Luciano concurred in the decision.