Opinion
December 31, 1998
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the order is modified, on the law, by (1) deleting the provision thereof which denied that branch of the motion of the defendants Harvey Manes and Barbara Manes which was to dismiss the complaint insofar as it is asserted against them pursuant to CPLR 3216, and substituting therefor a provision granting that branch of their motion, and (2) deleting the provisions thereof which denied those branches of the motion of the defendant Yvette Rafly which were to dismiss the complaint insofar as asserted against her pursuant to CPLR 3216 and for summary judgment, and substituting therefor provisions granting those branches of her motion; as so modified, the order is affirmed, without costs or disbursements, and the action against the remaining defendants is severed.
The defendants Harvey Manes, Barbara Manes, and Yvette Rafly served the plaintiff with a 90-day notice to resume prosecution of the action pursuant to CPLR 3216 (b) (3). The plaintiff thereafter failed to file a timely note of issue, or to make a motion, before the expiration of the 90-day period, for an extension of time within which to do so ( see, Jimenez v. Gamboa, 240 A.D.2d 470; Micalizzi v. Gomes, 239 A.D.2d 395; Spierto v. Pennsi, 223 A.D.2d 537; Papadopoulos v. R.B. Supply Corp., 152 A.D.2d 552). As the plaintiff failed to offer a justifiable excuse for this default, the sanction of dismissal of the complaint against the three defendants involved was warranted ( see, Papadopoulos v. R.B. Supply Corp., supra).
Although all three of these defendants requested summary judgment pursuant to CPLR 3212 as well, we find that only the defendant Yvette Rafly demonstrated entitlement to this relief. The parties' submissions reveal that there is no issue of fact requiring a trial on any theory of liability posited by the plaintiff against this defendant ( see, CPLR 3212 [b]; Zuckerman v. City of New York, 49 N.Y.2d 557).
The parties' remaining contentions are without merit.
Bracken, J. P., Copertino, Thompson and McGinity, JJ., concur.