Opinion
October 4, 1991
Appeal from the Supreme Court, Oswego County, Miller, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: In the absence of an opposing affidavit showing a justifiable excuse for the delay and a good and meritorious cause of action, the court abused its discretion in denying defendant's motion made pursuant to CPLR 3216 (e) to dismiss the complaint for failure to file a note of issue within 90 days after demand therefor (see, McLennan v County of Erie, 154 A.D.2d 909; Granville v Rappold Trucking Co., 134 A.D.2d 914; Charlotte Lake Riv. Assocs. v American Ins. Co., 130 A.D.2d 947, lv denied 70 N.Y.2d 605; Cox v Edmister, 122 A.D.2d 557, appeal dismissed 68 N.Y.2d 900, lv denied 69 N.Y.2d 603; MacLeod v Nolte, 106 A.D.2d 860, 861).