Rosado v. Ward Trucking Co.

186 A.D.2d 3

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 3, 1992
• Status: Published

Opinion

Orders, Supreme Court, Bronx County (Hansel McGee, J.), entered on or about April 11, 1991, granting defendants’ motion and cross motion to deem the matter abandoned; entered April 24, 1991 granting defendants’ motion and cross motion to strike plaintiffs’ note of issue dated March 12, 1991; and entered July 10, 1991, granting the motion of defendants Ward Trucking Co. and Onofrio J. Contino to dismiss plaintiffs’ complaint unconditionally and directing the clerk to enter judgment in favor of said defendants, unanimously affirmed, without costs.

This is not a case of plaintiffs’ general failure to prosecute or to timely file a note of issue. Plaintiffs were directed by discovery order dated September 23, 1988 to file a note of issue in this case by September 15, 1989. Plaintiffs did not do so, and nearly one year later, in or around August 1990, defendants moved to dismiss plaintiffs’ complaint. Although this motion was defective, plaintiffs cross moved for an extension of time to file a note of issue, which motion was granted, and plaintiffs’ time to serve and file a note of issue was extended to October 31, 1990. Plaintiffs again failed to comply. Defendants’ second motion to dismiss was made well over 90 days from the date of the second order directing plaintiffs to file a note of issue. On argument before this Court, plaintiffs abandoned their contention that the October order directing them to serve and file a note of issue by October 31, 1990 was never served, and having failed to proffer a reasonable excuse for their failure to follow the court’s direction or to offer a showing of merit, the IAS Court did not abuse its discretion in dismissing the complaint (see, Rubens v STO Indus., 160 AD2d 662; Lyons v Butler, 134 AD2d 576). Concur—Murphy, P. J., Milonas, Rosenberger, Ross and Smith, JJ.