Unger v. Dover Union Free School District

303 A.D.2d 677, 756 N.Y.S.2d 778

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 3, 2001, as granted the defendants’ motion to dismiss the complaint for failure to comply with a conditional order of dismissal, and (2) an order of the same court dated August 22, 2002, as denied that branch of the motion which was for leave to renew his prior motion.

Ordered that the orders are affirmed insofar as appealed from, with one bill of costs payable to the defendants.

As a result of the plaintiffs failure to fully and timely comply with a conditional order of dismissal dated June 6, 2001, that conditional order became absolute (see Jenkinson v Naccarato, 286 AD2d 420 [2001]; Stewart v City of New York, 266 AD2d 452 [1999]). To avoid the adverse impact of the conditional order, the plaintiff was required to demonstrate an excusable default and the existence of a meritorious cause of action (see Jenkinson v Naccarato, supra; Mann v Dachel, 210 AD2d 461, 462 [1994]). He failed to do so and, therefore, the Supreme Court properly dismissed the complaint.

The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was for leave to renew (see Wechsler v First Unum Life Ins. Co., 295 AD2d 340, 342 [2002]; CPLR 2221 [e] [2], [3]). Altman, J.P., Smith, Luciano, Adams and Cozier, JJ., concur.