Rooney v. Bieber

Weiss, J. Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Benson, J.), entered September 28, 1990 in Dutchess County, which granted defendants’ motion to dismiss the complaint for failure to prosecute. On January 23, 1989 plaintiffs’ note of issue and statement of readiness in this dental malpractice action was ordered stricken when their counsel was unable to proceed to trial. A court order permitted plaintiffs to refile without payment of additional fees and, although plaintiffs’ counsel was so advised by the court clerk, he failed to refile. On July 10, 1990, defendants moved pursuant to CPLR 3404 to dismiss the complaint on abandonment grounds. Supreme Court granted the motion, holding that the opposing affidavit submitted by plaintiffs’ attorney in opposition contained neither proof of the merits of the action, an excuse for the failure to refile, nor a showing of lack of prejudice to defendant. Plaintiffs have appealed. The failure to submit proof of a meritorious cause of action is a fatal defect in plaintiffs’ opposition to the motion to dismiss for abandonment (see, Condro v Jhaveri, 154 AD2d [931] 646, 647, lv dismissed 75 NY2d 896). Since plaintiffs have totally failed to overcome the presumption of abandonment (CPLR 3404), dismissal was appropriate. Mahoney, P. J., Yesawich Jr., Levine and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.