Lopez v. Lopez

203 A.D.2d 99, 612 N.Y.S.2d 839

Opinion

—Order, Supreme Court, Suffolk County (James A. Gowan, J.), entered April 6, 1992, which granted defendant’s motion to dismiss the complaint brought to recover for necessaries pursuant to CPLR 3211 (a) (5), unanimously affirmed, without costs.

The trial court in the prior matrimonial action denied plaintiff’s motion to amend the complaint to include a claim for necessaries and also denied the ensuing request for renewal. The instant action is simply an attempt to avoid the consequences of plaintiff’s failure to appeal from the denial of her motion to amend. In any event, plaintiff not only neglected to assert a timely cause of action for necessaries, but she has not offered any explanation for not endeavoring to seek such relief until the eve of trial. The court, therefore, properly granted defendant’s motion to dismiss the complaint in the instant matter (Sorkin v Sorkin, 111 AD2d 845). Concur —Sullivan, J. P., Asch, Nardelli and Tom, JJ.