Kinberg v Shnay

[*1] Kinberg v Shnay 2009 NY Slip Op 52328(U) [25 Misc 3d 138(A)] Decided on November 17, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 17, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570739/08.

Sivan Kinberg, Plaintiff-Appellant,

against

Kate Shnay, Defendant-Respondent

Plaintiff appeals from 1) an order of the Civil Court of the City of New York, Bronx County (Lizbeth Gonzalez, J.), dated June 20, 2007, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3126; and 2) an order (same court and Judge), dated February 7, 2008, which denied plaintiff's motion to vacate the prior dismissal order.

Per Curiam.

Orders (Lizbeth Gonzalez, J.), dated June 20, 2007 and February 7, 2008, affirmed, without costs.

Inasmuch as the unappealed June 2006 conditional order of preclusion became absolute upon plaintiff's failure to comply, and in the absence of the requisite showing by plaintiff of a reasonable excuse for her discovery derelictions and merit to her 2003 negligence claim, Civil Court properly granted defendant's motion to dismiss the complaint (see AWL Indus., Inc. v QBE Ins. Corp., ___AD3d___, 885 NYS2d 71 [2009]; VSP Assoc., P.C. v 46 Estates Corp., 243 AD2d 373 [1997]). Moreover, plaintiff demonstrated no basis to vacate the order dismissing the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 17, 2009