Opinion
September 3, 1992
Appeal from the Supreme Court, Bronx County (Hansel McGee, J.).
This is not a case of plaintiffs' general failure to prosecute or to timely file a note of issue. Plaintiffs were directed by discovery order dated September 23, 1988 to file a note of issue in this case by September 15, 1989. Plaintiffs did not do so, and nearly one year later, in or around August 1990, defendants moved to dismiss plaintiffs' complaint. Although this motion was defective, plaintiffs cross moved for an extension of time to file a note of issue, which motion was granted, and plaintiffs' time to serve and file a note of issue was extended to October 31, 1990. Plaintiffs again failed to comply. Defendants' second motion to dismiss was made well over 90 days from the date of the second order directing plaintiffs to file a note of issue. On argument before this Court, plaintiffs abandoned their contention that the October order directing them to serve and file a note of issue by October 31, 1990 was never served, and having failed to proffer a reasonable excuse for their failure to follow the court's direction or to offer a showing of merit, the IAS Court did not abuse its discretion in dismissing the complaint (see, Rubens v STO Indus., 160 A.D.2d 662; Lyons v Butler, 134 A.D.2d 576).
Concur — Murphy, P.J., Milonas, Rosenberger, Ross and Smith, JJ.