Opinion
November 27, 1991
Appeal from the Supreme Court, Dutchess County (Benson, J.).
On January 23, 1989 plaintiffs' note of issue and statement of readiness in this dental malpractice action was ordered stricken when their counsel was unable to proceed to trial. A court order permitted plaintiffs to refile without payment of additional fees and, although plaintiffs' counsel was so advised by the court clerk, he failed to refile. On July 10, 1990, defendants moved pursuant to CPLR 3404 to dismiss the complaint on abandonment grounds. Supreme Court granted the motion, holding that the opposing affidavit submitted by plaintiffs' attorney in opposition contained neither proof of the merits of the action, an excuse for the failure to refile, nor a showing of lack of prejudice to defendant. Plaintiffs have appealed.
The failure to submit proof of a meritorious cause of action is a fatal defect in plaintiffs' opposition to the motion to dismiss for abandonment (see, Condro v. Jhaveri, 154 A.D.2d 646, 647, lv dismissed 75 N.Y.2d 896). Since plaintiffs have totally failed to overcome the presumption of abandonment (CPLR 3404), dismissal was appropriate.
Mahoney, P.J., Yesawich Jr., Levine and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.