Dismissal – outright dismissal of a case for failure timely to file a note of issue, is becoming a well known event in many of the metro counties. Unlike New York county, where extensions of the date to file a Note of Issue are regularly sought and granted, in Kings and Nassau, for example, the rule is file or die.
Here is an example. "It is acknowledged by the movant that a Certification Order was issued by the undersigned on February 10, 2006 which directed that the plaintiff was to file a Note of Issue within 90 days or the "action is dismissed without further order of the Court. (CPLR §3216)." This Order was acknowledged by counsel appearing on that date on behalf of the plaintiff. (Motion Exh. 1). It is further conceded that the plaintiff did not file a Note of Issue within that 90 days. Plaintiff acknowledges receipt of a "Note of Issue Reminder" from the County’s Administrative Judge, dated April 24, 2006, which reminded plaintiff specifically, that the Note of Issue was due on or before May 10, 2006, and which, again warned the plaintiff that a failure to file the Note of Issue would result in dismissal of the action pursuant to CPLR §3216. (Motion Exh. 4). Sturgess v. Zelman, M.D., et al. "
Why are we discussing this? This one may yet be a legal malpractice case. Even though the court seems to have excused the mistake of failure to file, plaintiff may be able to demonstrate that the affidavit of merits itself was lackluster, and could have been much better. Had the affidavit cited the particular departure, then probably no dismissal.
File those notes on time!