McDonald v. Song Mountain, Inc.

125 A.D.2d 1006, 510 N.Y.S.2d 401, 1986 N.Y. App. Div. LEXIS 63207

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1986
• Status: Published

Opinion

— Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: In this long-delayed action, defendant served upon plaintiff a demand to resume prosecution of the action and to file and serve a note of issue within 90 days (CPLR 3216 [b] [3]). Plaintiff failed to comply, and defendant moved to dismiss the complaint. In response to the motion, plaintiff made no effort to demonstrate justifiable excuse for the delay or merit to the action. In such circumstances, Special Term erred in granting a conditional order of dismissal under which plaintiff was given 20 days to file the note of issue. Defendant’s motion should have been granted unconditionally (see, Walker v Town of Lockport, 109 AD2d 1102, affd 65 NY2d 840). (Appeal from order of Supreme Court, Cayuga County, Contiguglia, J. — dismiss complaint.) Present — Dillon, P. J., Callahan, Boomer, Green and Lawton, JJ.