Cope v. Barakaat

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 AD3d 960 [2011]; LaSalle Bank N.A. v Henderson, 69 AD3d 679 [2010]; Wen Zong Yu v Hua Fan, 65 AD3d 1335 [2009]). That record “must contain all of the relevant papers that were before the Supreme Court” (LaSalle Bank N.A. v Henderson, 69 AD3d at

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 AD3d 623 , 624 [2011]; Sanchez v Serje, 78 AD3d 1155 , 1156 [2010]; Bokhari v Home Depot U.S.A., 4 AD3d 381 [2004]). The plaintiff did none of these. The plaintiffs 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 AD3d 876 [2010]; Picot v City of New York, 50 AD3d 757 , 757-758 [2008]; Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006]). 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 NY2d 499 , 504 [1997]), or for his inordinate delay in the prosecution of this action (see Picot v City of New York, 50 AD3d at 758 ; Ovchinnikov v Joyce Owners Corp., 43 AD3d 1124 , 1127 [2007]; Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006]). Furthermore, the plaintiff failed to submit any affidavit of merit (see Picot v City of New York, 50 AD3d 757 [2008]; Burke v Klein, 269 AD2d 348 , 348-349 [2000]). 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