Kinberg v. Shnay

Full title: SIVAN KINBERG, Plaintiff-Appellant, v. KATE SHNAY, Defendant-Respondent

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Nov 17, 2009

2009 N.Y. Slip Op. 52328 (N.Y. App. Term 2009)

906 N.Y.S.2d 773

Opinion

570739/08.

Decided November 17, 2009.

Plaintiff appeals from 1) an order of the Civil Court of the City of New York, Bronx County (Lizbeth Gonzalez, J.), dated June 20, 2007, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3126; and 2) an order (same court and Judge), dated February 7, 2008, which denied plaintiff's motion to vacate the prior dismissal order.

Orders (Lizbeth Gonzalez, J.), dated June 20, 2007 and February 7, 2008, affirmed, without costs.

PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ.

PER CURIAM.

Inasmuch as the unappealed June 2006 conditional order of preclusion became absolute upon plaintiff's failure to comply, and in the absence of the requisite showing by plaintiff of a reasonable excuse for her discovery derelictions and merit to her 2003 negligence claim, Civil Court properly granted defendant's motion to dismiss the complaint ( see AWL Indus., Inc. v QBE Ins. Corp., ___ AD3d ___, 885 NYS2d 71 [2009]; VSP Assoc., P.C. v 46 Estates Corp., 243 AD2d 373). Moreover, plaintiff demonstrated no basis to vacate the order dismissing the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.