Opinion
2001-06023, 2001-10341
Submitted February 20, 2002.
March 25, 2002.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Lockman, J.), entered June 16, 1999, which upon, inter alia, an order of the same court, dated February 5, 1999, directing the plaintiffs to serve and file a note of issue within 90 days, directed that the action be dismissed pursuant to CPLR 3216, and (2) an order of the same court (Burke, J.), dated November 8, 2001, which denied their motion for leave to restore the action.
Siben Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for appellants.
Parisi Smitelli, Rockville Centre, N.Y. (Robin Mary Heaney of counsel), for respondent Bargain Bilge West, Inc.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, and STEPHEN G. CRANE, JJ.
ORDERED that on the court's own motion, so much of the notice of appeal as purports to appeal as of right from the order entered June 16, 1999, is treated as an application for leave to appeal from that order, and leave to appeal is granted (see, CPLR 5701[c]); and it is further,
ORDERED that the orders are affirmed, with one bill of costs payable to the respondent Bargain Bilge West, Inc.
The certification order of February 5, 1999, constituted a valid 90-day notice pursuant to CPLR 3216 (see Seletsky v. St. Francis Hosp., 263 A.D.2d 452, 453; Safina v. Queens-Long Is. Med. Group, 238 A.D.2d 395). Having been served with a 90-day notice, it was incumbent on the plaintiffs to either file a note of issue within 90 days or move pursuant to CPLR 2004 for an extension of time within which to comply (see Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653, 654; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 553). The plaintiffs did neither. Contrary to the plaintiffs' contention, there is no reliable evidence that they actually filed a note of issue within the 90 days. In addition, there is no evidence or contention that the plaintiffs moved for an extension of time to file a note of issue. Thus, there is no merit to the plaintiffs' contention that the order dated June 16, 1999, improperly directed that the action be dismissed. Accordingly, the plaintiffs could avoid dismissal only by establishing a reasonable excuse for noncompliance and a meritorious cause of action (see Trust Company of N.J. v. Genser, 271 A.D.2d 524, 526; Pollucci v. Rizzo, 261 A.D.2d 594, 595). Since the plaintiffs failed to establish a reasonable excuse for failing to file the note of issue, the Supreme Cort properly denied their motion to restore the action.
SANTUCCI, J.P., GOLDSTEIN, SCHMIDT and CRANE, JJ., concur.