Opinion
November 19, 1993
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Callahan, J.P., Green, Fallon, Boomer and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant's motion to dismiss the complaint pursuant to CPLR 3216. In order to defeat defendant's motion, it was incumbent upon plaintiff to show a justifiable excuse for failure to file a note of issue within the 90-day period following defendant's demand, and to establish that he has a meritorious cause of action (see, CPLR 3216 [e]; Zent v Board of Educ., 174 A.D.2d 1047; Charlotte Lake Riv. Assocs. v American Ins. Co., 130 A.D.2d 947, lv denied 70 N.Y.2d 605). The affidavit of plaintiff's attorney, submitted in opposition to the motion, does not provide a sufficient excuse for failure to comply with the demand and does not address the merits of the action (see, Zent v Board of Educ., supra; Cox v Edmister, 122 A.D.2d 557, appeal dismissed 68 N.Y.2d 900).