Ali v K&H Steinway LLC

2026 NY Slip Op 03380

June 2, 2026

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Mohammad Ali, Plaintiff-Appellant,

The K&H Steinway LLC, Defendant-Respondent, Steinway Halal Grill, et al., Defendants.

Decided and Entered: June 02, 2026

Index No. 809646/21|Appeal No. 6775|Case No. 2025-01916|

Before: Manzanet-Daniels, J.P., Kennedy, Mendez, Michael, Hagler, JJ.

Neimark Coffinas & Lapp LLP, New City (Ira H. Lapp of counsel), for appellant.

Chesney, Nicholas & Brower, LLP, Syosset (Stephen V. Morello of counsel), for respondent.

[*1]

Order, Supreme Court, Bronx County (Kim Adair Wilson, J.), entered on or about January 14, 2025, which granted the motion of defendant The K&H Steinway LLC to dismiss the amended verified complaint pursuant to CPLR 3216 for failure to prosecute, unanimously affirmed, without costs.

Supreme Court providently dismissed the action for failure to prosecute as defendant K&H satisfied all of the requirements of CPLR 3216 (b) and plaintiff failed to show a reasonable excuse for not serving and filing a note of issue within 90 days of K&H's properly served CPLR 3216 demand or for the delay in prosecuting this action before and after receiving such demand (see Goldstein v Winard, 51 AD3d 569, 570 [1st Dept 2008]; Garcia v Del Pacifico, 299 AD2d 188, 188 [1st Dept 2002]). Plaintiff also failed to submit an affidavit of merit from a person with knowledge of the facts supporting his claim of negligence, as required by CPLR 3216(e) (see Missos v General Motors Corp., 30 AD3d 303, 303 [1st Dept 2006]; Fuentes v 2254 Realty Co., 151 AD2d 355, 355 [1st Dept 1989]).

Furthermore, the fact that plaintiff responded to H&K's discovery demands in opposition to the CPLR 3216 motion does not relieve him from the requirements of the statute.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 2, 2026