Retamozzo v. Friedland

Order, Supreme Court, New York County (George J. Silver, J.), entered June 3, 2013, which denied plaintiffs motion to vacate an order and ensuing judgment dismissing plaintiffs verified amended complaint as a sanction for willfully refusing to comply with discovery orders, unanimously affirmed, without costs. There is no basis for vacating the order and ensuing judgment. Even if CPLR 5015 (a) (1) is applicable, plaintiff failed to provide a reasonable excuse for not moving to confirm or reject a special referee’s report recommending a conditional dismissal of the amended complaint due to plaintiffs willful noncompliance with discovery orders (see Uniform Rules for Trial Cts [22 NYCRR] § 202.44 [a]). Plaintiffs contention that he did not have notice of the filing of the report is “demonstrably false,” as the record shows that the report was filed and published online on May 10, 2012, and that on May 22, 2012 defense counsel informed plaintiff of the report’s online publication (Wilf v Halpern, 234 AD2d 154, 154 [1st Dept 1996]). We have considered plaintiffs remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Friedman, Manzanet-Daniels, Clark and Kapnick, JJ.