Umeze v. Fidelis Care N.Y.

• Decision Date: 09 June 2011
• Citation: 952 N.E.2d 1060,2011 N.Y. Slip Op. 04770,929 N.Y.S.2d 67,17 N.Y.3d 751
• Parties: Ben UMEZE, M.D., Respondent,v.FIDELIS CARE NEW YORK, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

17 N.Y.3d 751

952 N.E.2d 1060

929 N.Y.S.2d 67

2011 N.Y. Slip Op. 04770

Ben UMEZE, M.D., Respondent,

v.FIDELIS CARE NEW YORK, et al., Appellants.

Court of Appeals of New York.

June 9, 2011.

OPINION TEXT STARTS HERESedgwick, Detert, Moran & Arnold LLP, New York City (Michael H. Bernstein and John T. Seybert of counsel), for appellants.Law Offices of Joseph N. Obiora, Jamaica (Joseph N. Obiora of counsel), for respondent.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 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 N.Y.2d 499, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997] ).

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

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.