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Cathy R. Lee v. Victor M. Guzman

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 24, 2012

CATHY R. LEE,
APPELLANT,
v.
VICTOR M. GUZMAN,
RESPONDENT.

Appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated September 14, 2004, and an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 16, 2009.

Lee v Guzman

Decided on January 24, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The order dated September 14, 2004 directed plaintiff to appear for a further independent medical examination within 30 days or the complaint would be dismissed. The order entered October 16, 2009 granted defendant's motion to dismiss the complaint based upon plaintiff's failure to comply with the September 14, 2004 order.

ORDERED that the appeal from the order dated September 14, 2004 is dismissed; and it is further, ORDERED that the order entered October 16, 2009 is affirmed, without costs.

In this action, commenced in Supreme Court, Kings County, in 2002, plaintiff alleges serious injuries, pursuant to Insurance Law § 5102 (d), arising from an accident on January 7, 2002. By order dated September 14, 2004 and signed by counsel for both parties, the Supreme Court directed plaintiff to appear for a further independent medical examination within 30 days or the complaint would be dismissed. The parties agree that plaintiff did not comply with that order. Shortly thereafter, the action was transferred to the Civil Court, Kings County, pursuant to CPLR 325 (d). In 2006, plaintiff's counsel caused the action to be marked off the trial calendar. After the case was restored to the trial calendar over defendant's objection, defendant moved to dismiss the complaint based upon plaintiff's failure to comply with the September 14, 2004 order. By order entered October 16, 2009, the Civil Court granted defendant's motion. Plaintiff appeals from both the September 14, 2004 Supreme Court order and the October 16, 2009 Civil Court order.

At the outset, it is noted that this court has jurisdiction to hear the appeal from the 2004 Supreme Court order, as the notice of appeal from that order was filed after the case had been transferred to the Civil Court pursuant to CPLR 325 (d) (Pollack v Anh Thanh Pham, 27 Misc 3d 28 [App Term, 2d, 11th & 13th Jud Dists 2010]). However, both parties concede that the 2004 order did not decide a motion made on notice. As the order was either entered on consent, from which no appeal would lie (see CPLR 5511; Matter of D'Imperio v Putnam Lake Fire Dept., 262 AD2d 410 [1999]; Matter of Reynolds v Spanakos, 196 AD2d 798 [1993]), or was decided sua sponte or in response to an oral application, from which no appeal lies of as of right (see CCA 1702 [a]; CPLR 2211; Sholes v Meagher, 100 NY2d 333 [2003]) and leave to appeal has not been granted (see CCA 1702 [c]), the appeal from the September 14, 2004 order is dismissed.

With respect to the 2009 order, we find that the Civil Court did not improvidently exercise its discretion in dismissing the complaint based upon plaintiff's failure to comply with the 2004 order. First, contrary to plaintiff's argument, the 2004 order was not invalid. Second, a conditional order of dismissal, such as the September 14, 2004 order, becomes absolute upon a party's failure to sufficiently and timely comply (e.g. Ragubir v 44 Ct. St., LLC, 60 AD3d 833 [2009]; Gavrielatos v Vienna Hotel, 31 AD3d 496 [2006]; Matter of Denton v City of Mount Vernon, 30 AD3d 600 [2006]). To avoid the adverse impact of the conditional order of dismissal, the defaulting party must demonstrate a reasonable excuse for the failure to timely comply and the existence of a meritorious cause of action (see e.g. Ragubir, 60 AD3d 833; Matter of Denton, 30 AD3d 600). Plaintiff offered no excuse in the Civil Court for her failure to comply with the order. The evidence offered by plaintiff on appeal to show why she did not comply is dehors the record and will not be considered (see Devellis v Lucci, 266 AD2d 180 [1999]; Chimarios v Duhl, 152 AD2d 508 [1989]). Moreover, plaintiff failed to demonstrate a meritorious cause of action.

Plaintiff's remaining arguments on appeal lack merit.

Accordingly, the order entered October 16, 2009 is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: January 24, 2012

20120124

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