Frons v. Uliss

287 A.D.2d 537, 731 N.Y.S.2d 644, 2001 N.Y. App. Div. LEXIS 9546

Opinion

—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judg ment of the Supreme Court, Queens County (Milano, J.), dated October 2, 2000, which, upon an order of the same court dated July 21, 2000, inter alia, granting the defendants’ motion to dismiss the complaint, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

By order dated November 8, 1999, the Supreme Court, inter alia, granted the plaintiffs leave to file a late notice of medical malpractice (see, CPLR 3406 [a]), but also concluded that the plaintiffs had “significantly delay[ed] the litigation,” and directed them to pay “costs and attorney’s fees to defendants in the sum of $1,000.” The plaintiffs neither filed the notice nor paid the $1,000, and in its order dated July 21, 2000, the Supreme Court found that “plaintiff * * * contemptuously failed to pay the counsel fees.” Under these circumstances, the Supreme Court providently exercised its discretion in granting the defendants’ motion to dismiss the complaint (see, CPLR 3406 [a], [b]; Tewari v Tsoutsouras, 75 NY2d 1; Krulik v Meyerowitz, 160 AD2d 770). Goldstein, J. P., McGinity, H. Miller and Townes, JJ., concur.