Opinion
2017–12597 Index No. 13448/12
02-27-2019
Lloyd DRUMMOND, Respondent, v. Raz WINIARSKY, etc., Appellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Deirdre E. Tracey of counsel), for appellant.
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 & ORDERORDERED 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 have granted that branch of the defendant's motion which was to dismiss the complaint based on the plaintiff's failure to comply with the conditional order of dismissal.
AUSTIN, J.P., MALTESE, CONNOLLY and CHRISTOPHER, JJ., concur.