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UMEZE v. FIDELIS CARE NEW YORK

No. 179 SSM 19

17 N.Y.3d 751 (2011)

952 N.E.2d 1060

929 N.Y.S.2d 67

2011 NY Slip Op 4770

BEN UMEZE, M.D., Respondent, v. FIDELIS CARE NEW YORK et al., Appellants.

Court of Appeals of New York.

Decided June 9, 2011.

Attorney(s) appearing for the Case

Sedgwick, Detert, Moran & Arnold LLP, New York City (Michael H. Bernstein and John T. Seybert of counsel), for appellants.

Law Offices of Joseph N. Obiora, Jamaica (Joseph N. Obiora of counsel), for respondent.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, defendants' motion to dismiss the complaint pursuant to CPLR 3216 granted unconditionally, and the certified question answered in the negative.

Supreme Court abused its discretion by declining to grant defendants' motion to dismiss without condition. Plaintiff failed to establish a (1) justifiable excuse for his failure to timely file a note of issue...

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