Mariacher v. Gicewicz

177 A.D.2d 1007, 578 N.Y.S.2d 26, 1991 N.Y. App. Div. LEXIS 15774

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1991
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court abused its discretion in denying defendant’s motion to dismiss plaintiffs complaint for lack of prosecution pursuant to CPLR 3216. Plaintiff contended that her efforts to schedule depositions, made on three occasions over a 31-month period, constituted justifiable excuse for her failure to file and to serve a note of issue. The record reveals, however, that plaintiff did not cooperate with defendant’s efforts to schedule depositions and that she never sought to strike defendant’s demand or to seek an extension of the 90-day period. Plaintiff failed to prosecute her claim as demanded by defendant, and she has failed to demonstrate any justifiable excuse for her inaction (see, Azzoto v City of Syracuse, 176 AD2d 1197; Rumrill v Epting, 88 AD2d 1047, 1048; see also, Mason v Simmons, 139 AD2d 880, 881; Meth v Maimonides Med. Center, 99 AD2d 799, 800). (Appeal from Order of Supreme Court, Erie County, Gossel, J.—Dismiss Complaint.) Present—Doerr, J. P., Denman, Boomer, Green and Davis, JJ.