Opinion
June 7, 1991
Appeal from the Supreme Court, Cattaraugus County, Sprague, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Lowery, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: It is well settled that, absent demonstration of a meritorious cause of action and justifiable excuse for the failure to file a note of issue within the 90-day period, it is an abuse of discretion to deny a CPLR 3216 motion to dismiss for lack of prosecution (see, Cox v Edmister, 122 A.D.2d 557, appeal dismissed 68 N.Y.2d 900; MacLeod v Nolte, 106 A.D.2d 860). Absent a showing that defendant deliberately denied or obstructed discovery, plaintiffs' delay in obtaining discovery does not constitute a justifiable excuse for the failure to file a note of issue within the 90-day period or the failure to move for an extension of time (see, Papadopoulas v R.B. Supply Corp., 152 A.D.2d 552, 553; Mason v Simmons, 139 A.D.2d 880, 881; CIC Intl. v Swiss Bank Corp., 121 A.D.2d 219, 220-221). The suggestion by plaintiffs' attorney of record in Buffalo that he thought that a Pennsylvania attorney would file the note of issue is not persuasive. The Pennsylvania attorney had no communication with defendant or its attorney during the pendency of this action for more than six years and did not participate in the belated discovery efforts.
Plaintiffs, in order to demonstrate the existence of a meritorious cause of action, were obliged to submit materials in the same evidentiary form as on a motion for summary judgment (see, Walker v Town of Lockport, 109 A.D.2d 1102, affd 65 N.Y.2d 840; MacLeod v Nolte, 106 A.D.2d 860, supra; Jones v First Fed. Sav. Loan Assn., 101 A.D.2d 1005). Plaintiffs submitted an engineer's affidavit which opined that a crossbar on the forklift plaintiff was operating when injured was negligently designed, but plaintiffs failed to submit any proof showing how the accident occurred or that the crossbar was involved in the accident. Absent evidence that the crossbar was a contributing cause of the accident, plaintiffs failed to demonstrate the existence of a meritorious cause of action (see, Hass v Town of Orangetown, 163 A.D.2d 726, lv dismissed 77 N.Y.2d 893).