Opinion
Argued April 7, 2000.
July 12, 2000.
In an action to recover damages for personal injuries, the defendants AT T; Information Systems and Ronald Gagliano and the defendant Lee R. Underwood separately appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated June 1, 1999, which denied their motions to dismiss the complaint insofar as asserted against them for failure to prosecute and granted the plaintiff's cross motion for leave to file a note of issue.
Boeggeman, George, Hodges Corde, P.C., White Plains, NY (Leslie K. Arfine and Cynthia Messemer of counsel), for appellants ATT Information Systems and Ronald Galiano.
Isserlis Sullivan, Bethpage, N.Y. (Lawrence R. Milles of counsel), for appellant Lee R. Underwood (no brief filed).
Baron Goodsell (Diane K. Farrell of counsel), East Setauket, NY, for respondent.
Before: WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs.
Where a party is served with a 90-day notice pursuant to CPLR 3216 and fails to comply with that notice by filing a note of issue or by moving, before the default date, either to vacate the notice or extend the 90-day period (see, Hayden v. Jones, 244 A.D.2d 316; Rubin v. Baglio, 234 A.D.2d 534), that party must demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and the existence of a meritorious cause of action (see, Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503; CPLR 3216[ e]). Contrary to the appellants' contentions, the plaintiff provided a justifiable excuse and demonstrated a meritorious cause of action.