Cadichon v. Facelle

Graffeo, J. (dissenting).

Although it may not be apparent from the majority writing, the issue before us is whether the courts below abused their discretion in declining to reinstate plaintiffs’ claim after it was dismissed as a consequence of their undisputed failure to comply with a CPLR 3216 90-day demand to file a note of issue. Because I discern no abuse of discretion, I would affirm.

The majority reinstates plaintiffs’ complaint based on their conclusion that the purported “ministerial” dismissal of the claim was erroneous because it was not preceded by a motion on notice—an argument that…