BEN UMEZE, M.D., Respondent,
v.
FIDELIS CARE NEW YORK et al., Appellants.
No. 179 SSM 19
Court of Appeals of New York.
Decided June 9, 2011.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.
*752 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 and (2) meritorious cause of action (see CPLR 3216 [e]; see also Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.