GRAY v. GRAY (1999)

In an action to recover damages for false arrest and malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Nassau County (Joseph, J.), dated December 3, 1998, which granted the motion of the defendant Dawn Gray to dismiss the complaint pursuant to CPLR 3216 insofar as asserted against her, and denied his cross motion for leave to file a note of issue nunc pro tunc.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contentions, the Supreme Court providently exercised its discretion in rejecting the plaintiff's belated motion for leave to file a note of issue and dismissing this action (see, CPLR 3216[a];  see, Baczkowski v Collins Constr. Co., 89 N.Y.2d 499, 655 N.Y.S.2d 848, 678 N.E.2d 460;  Davies v. Slotkin, 251 A.D.2d 533, 674 N.Y.S.2d 728).   The plaintiff's conclusory assertions of law office failure were insufficient to excuse his delay of almost one year in complying with the court's order directing the filing of a note of issue (see, Rudy v. Chasky, 260 A.D.2d 625, 689 N.Y.S.2d 176;  Kourtsounis v. Chakrabarty, 254 A.D.2d 394, 679 N.Y.S.2d 84;  Van Kleeck v. Horton Mem. Hosp., 251 A.D.2d 494, 673 N.Y.S.2d 1021).   Furthermore, the plaintiff did not serve an affidavit of merit in opposition to the defendants' motion or in support of his cross motion to restore the matter to the trial calendar, and he did not otherwise demonstrate the merit of his action (see, Garrett v. Martin, 264 A.D.2d 381, 693 N.Y.S.2d 441;  Ibekweh v. Wims, 258 A.D.2d 276, 682 N.Y.S.2d 857;  Russo v. Automotive Rentals, 247 A.D.2d 603, 669 N.Y.S.2d 232).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.