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Umeze v. Fidelis Care New York

17 N.Y.3d 751 Court N.Y. Decision date 2011-06-09 English

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p. 751
[952 NE2d 1060, 929 NYS2d 67]
Ben Umeze, M.D., Respondent, v Fidelis Care New York et al., Appellants.
Decided June 9, 2011
APPEARANCES OF COUNSEL
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.

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 [1997]).

p. 752
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.

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