Drummond v. Winiarsky

169 A.D.3d 1005

92 N.Y.S.3d 908 (Mem)

Lloyd DRUMMOND, Respondent,

v.Raz WINIARSKY, etc., Appellant.

2017–12597

Index No. 13448/12

Supreme Court, Appellate Division, Second Department, New York.

Submitted - October 26, 2018

February 27, 2019

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Deirdre E. Tracey of counsel), for appellant.

LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was to dismiss the complaint based on the plaintiff's failure to comply with a conditional order of dismissal is granted.

As a consequence of the plaintiff's failure to comply with the conditional order of dismissal, that order became absolute. To be relieved from the adverse impact of the conditional order of dismissal, the plaintiff was required to demonstrate a reasonable excuse for his failure to timely comply with the discovery demands, and the existence of a potentially meritorious cause of action (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 ; Corex–SPA v. Janel Group of N.Y., Inc., 156 A.D.3d 599, 66 N.Y.S.3d 509 ). The plaintiff did not meet this burden. Therefore, the Supreme Court should...