GAVILLAN v. Dania Pena, et al., Defendants-Respondents. (2004)

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about September 6, 2002, which granted the Pena defendants' motion to dismiss the complaint for failure to prosecute, and order, same court and Justice, entered November 21, 2003, which, to the extent appealable, denied plaintiff's motion for renewal of her response to the prior motion, unanimously affirmed, without costs.

On the initial motion, plaintiff failed to show a meritorious cause of action.   She also failed to offer a reasonable excuse for not serving and filing a note of issue, for not responding to the Pena defendants' 90-day demand for a note of issue, and for not explaining the delay of more than four years in prosecuting this action (CPLR 3216;  Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997];  Berman v. Harold Nye Ford, 280 A.D.2d 308, 719 N.Y.S.2d 655 [2001] ).

The motion court did not improvidently exercise its discretion in denying plaintiff's motion to renew, where the alleged excuse for the failure to comply with the 90-day notice (namely, eviction proceedings pending against plaintiff's counsel) was not made known to the court on the first motion.   In any event, this would not have explained the pattern of delay over the course of the litigation.

We have considered plaintiff's other arguments and find them unavailing.