Opinion
November 16, 1992
Appeal from the Supreme Court, Kings County (Bellard, J.).
Ordered that the judgment is affirmed, with one bill of costs.
Where a plaintiff fails to comply with a 90-day notice to file a note of issue pursuant to CPLR 3216, a defendant is entitled to dismissal if the plaintiff fails to show an adequate excuse as well as a meritorious cause of action. To avoid being held in default, a plaintiff served with a 90-day notice must either timely file a note of issue, or move to vacate the notice or for an extension of time within which to file (see, Aaron v Donnenfeld, 162 A.D.2d 381; Danskin v Gunther, 155 A.D.2d 859; Carte v Segall, 134 A.D.2d 397).
As the plaintiff never filed a proper note of issue and did not establish an excuse for his default or the existence of a meritorious claim, dismissal of the complaint was proper (see, Pascone v Cordis Corp., 161 A.D.2d 749; Sedito v Moskow, 106 A.D.2d 564).
Additionally, the sanction of dismissal of the complaint insofar as it is asserted against the defendant Community Hospital of Brooklyn, Inc., was proper pursuant to CPLR 3126, as the plaintiff, despite prior court orders, failed to comply with discovery (see, Gonzalez v Paniccioli, 174 A.D.2d 709; Mills v Ducille, 170 A.D.2d 657). Bracken, J.P., Lawrence, Miller, Copertino and Santucci, JJ., concur.