Otero v. City of New York

202 A.D.2d 332, 609 N.Y.S.2d 13, 1994 N.Y. App. Div. LEXIS 2777

Opinion

—Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered December 29, 1992, which denied plaintiffs motion to vacate a prior order of the same court and Justice dismissing plaintiff’s complaint for failure to prosecute, unanimously affirmed, without costs.

In the absence of an affidavit of merit, the IAS Court properly denied plaintiffs motion to vacate the prior order dismissing her complaint (Palmieri v Romat Realty Corp., 45 AD2d 948). In view of plaintiffs attorney’s actual knowledge of the vacatur of her note of issue prior to service of the 90 day notice, we reject plaintiff’s contention that the prior order was obtained through "extrinsic fraud”, thus obviating the need for an affidavit of merit. We have considered plaintiffs other arguments and find them to be without merit. Concur— Murphy, P. J., Sullivan, Rosenberger, Asch and Tom, JJ.