Opinion
June 24, 1991
Appeal from the Supreme Court, Kings County (Bellard, J.).
Ordered that the order is reversed, on the facts, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the defendant New York Eye and Ear Infirmary.
The Supreme Court improvidently exercised its discretion in denying the appellant's motion to dismiss the plaintiff's complaint insofar as asserted against it. At the time the appellant served its first 90-day demand pursuant to CPLR 3216 on October 11, 1988, it was incumbent upon the plaintiff to comply or seek an extension of the 90-day period. The plaintiff did not respond to this demand nor to a second demand served on May 25, 1989. Having failed to fulfill her obligations, the plaintiff was obligated to establish a justifiable excuse and a meritorious cause of action to avoid the sanction of dismissal. The affirmation by the plaintiff's counsel was insufficient to establish a meritorious cause of action and, as no acceptable excuse was offered for the failure to proceed and timely file the note of issue, the complaint is dismissed insofar as asserted against the appellant (see, Midolo v Horner, 131 A.D.2d 825; Meth v Maimonides Med. Center, 99 A.D.2d 799). Bracken, J.P., Kooper, Lawrence, Balletta and O'Brien, JJ., concur.