Derusha v. Golub Corp.

81 A.D.2d 987, 440 N.Y.S.2d 81, 1981 N.Y. App. Div. LEXIS 11730

Opinion

— Appeal from an order of the Supreme Court at Special Term, entered August 28, 1980 in Warren County, which denied defendant’s motion, pursuant to CPLR 3216, to dismiss the complaint for failure to prosecute. The underlying action is for personal injuries allegedly sustained as the result of defendant’s negligence. The action was commenced on July 18, 1978 and issue was joined on August 21, 1978. On November 9, 1979, defendant served a demand for the service and filing of a note of issue pursuant to CPLR 3216 upon plaintiff’s attorney. The note of issue was never filed and on March 18, 1980 defendant brought the instant motion to dismiss under the provisions of CPLR 3216. Plaintiff’s attorney opposed the motion with an affirmation contending that his failure to file a note of issue was the result of his inability to contact the plaintiff. Upon hearing the motion on May 1, 1980, Special Term denied defendant’s motion

* to dismiss. We reverse. It is well settled that plaintiff must establish a justifiable excuse for the delay and a meritorious cause of action (Smith v City of Troy, 77 AD2d 691). In the instant case, plaintiff has failed to do either. Thus, the motion to dismiss plaintiff’s complaint should have been granted. Order reversed, on the law and the facts, without costs, and motion to dismiss complaint granted. Mahoney, P.J., Sweeney, Kane, Casey and Weiss, JJ., concur.

The third- and fourth-party defendants joined in defendant’s motion to dismiss.