Griggs v. Brodsky

Dennis Griggs, Plaintiff-Respondent, against Phillip Brodsky, Gabriel Brodsky, 0Theodore Bye, Paul Brodsky, Henry Loring, Jerome Nasoff, Sidney Schneider, Frank Packer, Dorel Company and Benjamin/Adele Roberts Co., d/b/a 25th Realty Associates and Page Management, Inc., Defendants-Appellants. Defendants appeal from an order of the Civil Court of the City of New York, New York County (William Franc Perry, J.), entered February 4, 2016, which granted plaintiff's motion to vacate a prior order dismissing the complaint pursuant to CPLR 3216. Per Curiam. Order (William Franc Perry, J.), entered February 4, 2016, reversed, without costs, motion denied and default judgment reinstated. More than 18 years after commencement of this action, arising from a February 13, 1995 slip and fall, defendants moved pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. The motion was granted on default. Plaintiff's subsequent motion to vacate the default should have been denied. Although plaintiff's counsel set forth a medical excuse for failing to oppose the dismissal motion, the moving papers fail to set forth a reasonable excuse for failing to file a notice of trial (see Caraballo v Montefiore Med. Ctr., 89 AD3d 638, 639 [2011]) or for the extensive delays in prosecuting this action (see Walker v City of New York, 46 AD3d 278, 280-281 [2007]). Moreover, plaintiff failed to demonstrate the merits of the action, and his attempt to cure this deficiency in his reply papers was improper (see Simak v Simak, 121 AD3d 1090, 1091 [2014]; Bustamante v Green Door Realty Corp., 69 AD3d 521, 522 [2010]). We note the absence of a respondent's brief. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: October 12, 2018