Aalbue v. Flaherty

202 A.D.2d 381, 608 N.Y.S.2d 514, 1994 N.Y. App. Div. LEXIS 1914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Becker, J.), dated December 3, 1991, which granted the motion of the defendant Long Island Trust Co., to dismiss the complaint pursuant to CPLR 3216 for failure to file a note of issue, and the separate motion of the defendants Bob Flaherty and Bob Flaherty, Inc., for similar relief and to dismiss the complaint pursuant to CPLR 3126 for failure to comply with a disclosure order.

Ordered that the order is affirmed, with costs.

The plaintiff submitted no affidavit of merit in opposition to the motions by the defendants to dismiss pursuant to CPLR 3216 for failure to timely file a note of issue. Dismissal of the complaint was therefore warranted (see, CPLR 3216 [e]; Sortino v Fisher, 20 AD2d 25). Dismissal of the complaint insofar as asserted against the defendants Bob Flaherty and Bob Flaherty, Inc., for failure to comply with a disclosure order was also appropriate (see, CPLR 3126 [b] [3]). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.