Opinion
February 5, 1993
Appeal from the Supreme Court, Monroe County, Rosenbloom, J.
Present — Denman, P.J., Boomer, Green, Balio and Davis, JJ.
Order unanimously reversed on the law with costs, motion granted and complaint dismissed. Memorandum: Defendant City of Rochester appeals from an order that denied its motion to dismiss pursuant to CPLR 3216 for failure to prosecute. In denying defendant's motion, the court granted plaintiff three weeks within which to resume prosecution by filing a note of issue.
We conclude that the action should be dismissed. In response to defendant City's 90-day demand to resume prosecution, plaintiff failed to file a note of issue or take any steps to indicate that he had any interest in resuming prosecution (see, Mason v Simmons, 139 A.D.2d 880, 881). It was therefore necessary for plaintiff, in order to avoid dismissal, to show both a justifiable excuse for his delay in prosecuting the action and a good and meritorious cause of action (CPLR 3216 [e]; Azzoto v City of Syracuse, 176 A.D.2d 1197, lv denied 79 N.Y.2d 752; Mason v Simmons, supra). Plaintiff failed to do either.