Young v. Tompkins

Memorandum: It was an abuse of discretion for the court to excuse plaintiff’s failure to comply with defendant’s demand to file the note of issue (CPLR 3216). To defeat the motion, a party must show a "justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216 [e]). Plaintiff failed to submit an affidavit of merits and counsel’s inability to locate his client for some two years does not constitute a justifiable excuse for the delay (Highlands Ins. Co. v Maddena Constr. Co., 109 AD2d 1071; see also, Abrams, Kochman, Rathskeller v Esquire Motels, 79 AD2d 879). Under these circumstances, the motion to dismiss should have been granted (Salch v Paratore, 60 NY2d 851; Walker v Town of Lockport, 109 AD2d 1102, affd 65 NY2d 840). (Appeal from order of Supreme Court, Erie County, Rath, J. — dismiss complaint.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.