Opinion
February 24, 2000
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about September 25, 1998, which denied plaintiff's motion for an extension of time to file a note of issue and,sua sponte, dismissed the complaint, unanimously affirmed, without costs. Order, same court and Justice, entered December 31, 1998, which, insofar as appealable, denied plaintiff's motion to renew, unanimously affirmed, without costs.
Pro Se for the Plaintiff-Appellant,
Alison R. Shields for the Defendants-Respondents.
WILLIAMS, J.P., TOM, SAXE, FRIEDMAN, JJ.
The complaint, which alleges medical malpractice, was properly dismissed, upon the court's own initiative taken upon plaintiff's motion for an extension of time to file made in response to defendants' 90-day notice (see, CPLR 3216 N.Y.CPLR[a]). The court's action was merited because of the failure to submit a physician's affidavit of merit (see, Mosberg v. Elahi, 80 N.Y.2d 941) and to provide a justifiable excuse for the six-year delay. The motion to renew was properly denied because it was not based on new facts (CPLR 2221 N.Y.CPLR[e][2]). The denial of reargument is not appealable (see, Matter of Schiavone v. Board of Trustees, 261 A.D.2d 237, 688 N.Y.S.2d 882).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.