June 9, 2011
BEN UMEZE, M.D., RESPONDENT,
FIDELIS CARE NEW YORK, ET AL., APPELLANTS.
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
The order of the Appellate Division should be reversed, with costs, defendants' motion to dismiss the complaint pursuant to CPLR 3216 granted unconditionally, and the certified question answered in the negative.
Supreme Court abused its discretion by declining to grant defendants' motion to dismiss without condition. Plaintiff failed to establish a (1) justifiable excuse for his failure to timely file a note of issue and (2) meritorious cause of action (see CPLR 3216 [e]; see also Baczkowski v Collins Constr. Co., 89 NY2d 499 ). On review of submissions pursuant to section 500.11 of the Rules, order reversed, with costs, defendants' motion to dismiss the complaint granted unconditionally, and certified question answered in the negative, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
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