Opinion
2003-1010 K C.
Decided March 26, 2004.
Appeal by defendant from an order of the Civil Court, Kings County (D. Waltrous, J.), entered on April 24, 2003, denying its motion to dismiss for failure to prosecute.
Order unanimously affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Where a party is served with a 90-day notice pursuant to CPLR 3216, it is incumbent upon that party to comply with the notice by filing a notice of trial in Civil Court or by moving, before the default date, either to vacate the notice or to extend the 90-day period ( see Sturkey v. Ramdas, 307 AD2d 310; Terk v. 40059 Owners Corp., 194 Misc 2d 419). Once the specified period has expired, the party wishing to avoid dismissal must demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice and the existence of a meritorious cause of action ( see CPLR 3216 [e]; Raffa v. Cook, 289 AD2d 385). Plaintiff's counsel provided a justifiable excuse for the delay in complying with the 90-day demand and plaintiff demonstrated a meritorious cause of action. Accordingly, the court properly denied the motion to dismiss pursuant to CPLR 3216 for failure to prosecute.