Puleo v. Pagano

203 A.D.2d 544, 612 N.Y.S.2d 935, 1994 N.Y. App. Div. LEXIS 4324

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1994
• Status: Published

Opinion

—In an action to recover damages for wrongful death, the plaintiff appeals (1) from a judgment of the Supreme Court, Kings County (Bellard, J.), dated September 19, 1991, which is in favor of the defendants, dismissing the complaint, and (2) from so much of an order of the same court, dated June 10, 1992, as, upon reargument, adhered to its original determination.

Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the order dated June 10, 1992, made upon reargument; and it is further,

Ordered that the order dated June 10, 1992, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

The present action was commenced in December 1985. A pre-calendar conference pursuant to CPLR 3406 (b) and 22 NYCRR 202.56 was held on June 27, 1986. At that conference, the court directed all the parties to hold depositions on or before November 21, 1986, and further directed all discovery to be completed by January 30, 1987. The plaintiff was directed to file a certificate of readiness upon the completion of discovery. Subsequently, a stipulation extended the plaintiff’s time to complete discovery to December 31, 1988. By July 1991, when the defendants cross-moved for dismissal of the complaint, a certificate of readiness had not been filed. Moreover, the plaintiff did not at any time seek an extension of the December 31, 1988, deadline. In light of the plaintiff’s failure to comply with the foregoing directives of the trial court, we find that the dismissal of the complaint was proper (see, CPLR 3406 [b]; 22 NYCRR 202.56 [b] [1] [iv]; [2]). Balletta, J. P„ Rosenblatt, Ritter and Friedmann, JJ., concur.