In Fenner v. County of Nassau, the Supreme Court in Nassau County issued a certification order, directing the plaintiff to file his Note of Issue within 90 days. On the day of the deadline, the plaintiff had neither filed his Note of Issue nor moved to extend the time to file the Note of Issue. Accordingly, the Court dismissed the complaint but later, pursuant to the plaintiff’s motion, restored the complaint to the pre-note calendar.

The Second Department reversed that decision, finding that the plaintiff had failed to demonstrate a reasonable excuse for the dealy. The Court found that “law office failure” did not rise to the level of a reasonable excuse. Further, the Court found that the plaintiff had failed to establish the existence of a meritorious cause of action.

Thanks to Georgia Stagias for her contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2011/2011_00178.htm