On March 15, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Esposito v. Estate of Casale, 2023 NY Slip Op. 30759(U), dismissing an action for failure to prosecute due to the plaintiff’s inability to justify the lack of activity, explaining:
It is well settled that when a plaintiff is served with a ninety day notice pursuant to § 3216 then the plaintiff must comply with the notice or move to vacate the notice or seek an extension of time within ninety days. Where a plaintiff fails to comply with such ninety day notice then the plaintiff must demonstrate a reasonable. excuse for such failure to respond to such. notice as well as a. meritorious cause of action.
The plaintiff has failed to adequately offer any reasonable excuse for the failure to respond to the ninety day notice served June 30, 2022. The plaintiff has presented excuses based upon the health of the parties due to COVID–19, the delay caused by COVID-19 generally and health issues of counsel. However, all those matters took place well before the ninety–day notice was served. The plaintiffs assert that there was never a thought of abandoning the prosecution of the action. Unfortunately, along with Covid, it was a series of unanticipated and unfortunate events that led to the delay in the prosecution. Nevertheless, there is no evidence presented that any COVID-19 related delays or other unforeseen events reasonably contributed to the three month delay from when the ninety-day notice was served to the filing of this motion.
Thus, while there may have been personal matters that counsel and the parties were required to attend there has been an insufficient presentation of any reasonable excuse for the failure to prosecute the action. The inability to prosecute the action in the past, even if reasonable, has no bearing on the current posture of the case and surely fails to adequately respond to the ninety-day notice. In addition, there has been no demonstration that the causes of action have any merit.
(Internal quotations and citations omitted).