Opinion
2001-09313
Submitted January 9, 2002.
February 6, 2002.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated October 4, 2001, which, in effect, denied its motion pursuant to CPLR 3216 to dismiss the complaint.
Lamb Barnosky, LLP, Melville, N.Y. (Scott M. Karson of counsel), for appellant.
Somer Heller, LLP, Commack, N.Y. (Jeffrey T. Heller and Stanley J. Somer of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
After they were served with a 90-day notice pursuant to CPLR 3216, "it was incumbent upon the plaintiffs to comply with the notice by filing a note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period" (Turman v. Amity OBG Assocs., 170 A.D.2d 668; see, Wilson v. Nembhardt, 180 A.D.2d 731, 733; Rubin v. Baglio, 234 A.D.2d 534; Lopez v. Pathmark Supermarket, 229 A.D.2d 566). The plaintiffs failed to do either. Accordingly, to avoid dismissal, they were required to demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice, and the existence of a meritorious cause of action (see, CPLR 3216[e]; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 553). The Supreme Court erred by, in effect, denying the defendant's motion to dismiss the complaint pursuant to CPLR 3216, as the plaintiffs failed to show either a justifiable excuse or the existence of a meritorious cause of action (see, Turman v. Amity OBG Assocs., supra; Papadopoulas v. R.B. Supply Corp., supra; Meth v. Maimonides Med. Center, 99 A.D.2d 799, 800).
SANTUCCI, J.P., GOLDSTEIN, LUCIANO, SCHMIDT and CRANE, JJ., concur.