Opinion
April 5, 1993
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the order entered January 7, 1991, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order entered November 12, 1991, is affirmed, without costs or disbursements; and it is further,
Ordered that the order entered December 13, 1991, is affirmed, without costs or disbursements.
Having been served with 90-day demands pursuant to CPLR 3216 in October and November 1989, it was incumbent upon the plaintiffs to comply with the notices by filing a note of issue "or by moving, before the default date, to either vacate the notice[s] or to extend the 90-day period" (Turman v Amity OBG Assocs., 170 A.D.2d 668). The plaintiffs failed to do so. In this regard we note that their unsworn letter dated December 18, 1989, which was allegedly sent to the Supreme Court, with copies to the other parties, requesting, inter alia, the vacatur of the 90-day notice, was apparently never received by the court, and, in any event, cannot, without permission of the trial court, be considered as a substitute for a motion supported by sworn statements (CPLR 2214). Accordingly, the plaintiffs, to avoid the sanction of dismissal, were required, as the Supreme Court held, to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notices and that they had a meritorious cause of action (see, Papadopoulas v R.B. Supply Corp., 152 A.D.2d 552).
Upon a review of the record, we agree with the Supreme Court that the plaintiffs met their burden in this regard. Mangano, P.J., Sullivan, O'Brien, Ritter and Pizzuto, JJ., concur.