Aciares v. Ragione

Order, Supreme Court, Bronx County (Alan J. Saks, J.) entered March 1, 1991, which denied plaintiffs motion to vacate a judgment of dismissal granted in favor of defendants Angel Diaz and Allstate Vehicles, on default, entered on or about March 13, 1990, and for permission to serve an amended complaint, unanimously affirmed, without costs. By order entered on or about April 24, 1986, plaintiff’s complaint in this action was dismissed without prejudice to plaintiffs right to seek leave to serve an amended complaint. Based upon plaintiff’s failure to serve any amended complaint, defendants moved for a final dismissal of the action, which was granted on default, judgment upon which was entered on or about March 13, 1990. The Court’s rejection of counsel’s excuse for the default was not an abuse of discretion. (See, Murphy v City of New York, 173 AD2d 236.) Since the statute of limitations has run, and the six month grace period pursuant to CPLR 205 (a) has long since expired, the IAS court correctly determined that it was constrained to deny plaintiffs motion. We have considered plaintiffs remaining arguments on this appeal and find them to be without merit. Concur—Murphy, P. J., Rosenberger, Ellerin and Asch, JJ.