Umeze v Fidelis Care N.Y, 17 NY3d 751 (2011)

2011 NY Slip Op 04770 [17 NY3d 751]
June 9, 2011
Court of Appeals

[*1]

Ben Umeze, M.D., Respondent,
v
Fidelis Care New York et al., Appellants.

Decided June 9, 2011

Umeze v Fidelis Care N.Y., 76 AD3d 873, reversed.

{**17 NY3d at 751} OPINION OF THE COURT

Memorandum.

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 [*2]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 [1997]).{**17 NY3d at 752}

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.