Opinion
No. 179 SSM 19.
Decided June 9, 2011.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 21, 2010. The Appellate Division affirmed an order of the Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J), which had granted a motion by defendants to dismiss the complaint for failure to prosecute to the extent of directing plaintiff to resume prosecution of the action within 10 days of service of the order with notice of entry. The following question was certified by the Appellate Division: "Was the order of Supreme Court, as affirmed by this Court, properly made?"
Umeze v Fidelis Care N.Y., 76 AD3d 873, reversed.
Sedgwick, Detert, Moran Arnold LLP, New York City ( Michael H. Bernstein and John T. Seybert of counsel), for appellants.
Law Offices of Joseph N. Obiora, Jamaica ( Joseph N. Obiora of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, defendants' motion to dismiss the complaint pursuant to CPLR 3216 granted unconditionally, and the certified question answered in the negative.
Supreme Court abused its discretion by declining to grant defendants' motion to dismiss without condition. Plaintiff failed to establish a (1) justifiable excuse for his failure to timely file a note of issue and (2) meritorious cause of action ( see CPLR 3216 [e]; see also Baczkowski v Collins Constr. Co., 89 NY2d 499).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.