- Court
- New York Supreme Court, Appellate Division, First Department
- Case
- Ali v. K&H Steinway LLC
- Date
- June 2, 2026
- Slip Op. No.
- 2026 NY Slip Op 03380
Background
Plaintiff Mohammad Ali commenced this action in Bronx County against defendant The K&H Steinway LLC and others. After the case languished without progress, defendant K&H served a demand pursuant to CPLR 3216(b) requiring the plaintiff to file a note of issue and certificate of readiness within ninety days. When the plaintiff failed to file the note of issue within the prescribed ninety-day period, the defendant moved to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute. The plaintiff opposed the motion but did not demonstrate a reasonable excuse for the delay. The Supreme Court, Bronx County, granted the motion and dismissed the amended verified complaint. The plaintiff appealed to the Appellate Division, First Department.
Holding
The Appellate Division unanimously affirmed the dismissal. The Court held that defendant K&H properly satisfied all of the statutory requirements of CPLR 3216(b) in seeking dismissal for failure to prosecute. The plaintiff failed to show a reasonable excuse for not filing a note of issue within the ninety-day demand period or for the broader delay in prosecuting the action, both before and after the demand was served. Additionally, the plaintiff failed to submit an affidavit of merit from a person with knowledge of the facts supporting the negligence claim, as required by CPLR 3216(e). The Court further noted that the plaintiff’s belated response to the defendant’s discovery demands, submitted only in opposition to the CPLR 3216 motion, did not relieve the plaintiff of the statutory requirements for avoiding dismissal.
Takeaways
CPLR 3216 provides a structured mechanism for defendants to compel plaintiffs to move their cases forward. Once a defendant properly serves a ninety-day demand, the plaintiff must either file a note of issue within that period or provide both a reasonable excuse for the delay and an affidavit of merit. Belated compliance with discovery obligations does not substitute for satisfying these statutory requirements. Courts will not accept a last-minute flurry of activity in opposition to a dismissal motion as evidence of intent to prosecute the case diligently.
Why It Matters
Plaintiffs’ counsel must treat a CPLR 3216 demand as a firm deadline with serious consequences. This decision makes clear that the First Department will enforce the statute’s requirements rigorously and will not overlook extended periods of inactivity merely because the plaintiff belatedly responds to outstanding discovery after the dismissal motion is filed. Practitioners should also note the separate requirement under CPLR 3216(e) for an affidavit of merit—a frequently overlooked element that independently warrants dismissal if not satisfied. The safest course for plaintiffs facing a CPLR 3216 demand is to file the note of issue promptly or, if unable to do so, to move immediately for an extension while the deadline is still running.