Opinion
Argued February 1, 2001.
March 5, 2001.
In an action, inter alia, to recover damages for lost profits, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered November 10, 1999, as denied their motion, in effect, to vacate an order of the same court, dated July 1, 1999, which, sua sponte, dismissed the complaint pursuant to CPLR 3216 upon the plaintiffs' failure to file a note of issue.
Seth A. Eschen, Syosset, N.Y., for appellants.
Nixon Peabody, LLP, Garden City, N.Y. (Michael S. Cohen and John F. Bolton of counsel), for respondents Maureen Rahaniotis and Fontinie Rahaniotis.
Carole A. Burns Associates, Mineola, N.Y. (Jeffrey M. Burkhoff of counsel), for respondent Sun Refining and Marketing Company.
Sedgwick, Detert, Moran Arnold, New York, N.Y. (Jason D. Turken and Howard R. Cohen of counsel), for respondent Larry E. Tyree Co., Inc.
Purcel Ingrao, Mineola, N.Y. (Anthony Marino of counsel), for respondent Tyree Bros. Environmental Services, Inc.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, SONDRA MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
As the order dated May 1, 1998, was a valid 90-day notice pursuant to CPLR 3216 (see, Forman v. Fleet Bank, 262 A.D.2d 449; Pollucci v. Rizzo, 261 A.D.2d 594; Safina v. Queens-Long Is. Med. Group, 238 A.D.2d 395; Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653; cf., Ameropan Realty Corp. v. Rangley Lakes Corp., 228 A.D.2d 631), "it was incumbent upon the plaintiff[s] to comply with the notice by filing an appropriate note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period" (Forman v. Fleet Bank, supra). Because the plaintiffs failed to act, the Supreme Court properly dismissed the complaint (see, Forman v. Fleet Bank, supra; Pollucci v. Rizzo, supra).
The Supreme Court properly denied the plaintiffs' motion to vacate their default under the 90-day notice because they failed to demonstrate a reasonable excuse and a meritorious cause of action (see, Gourdet v. Hershfeld, 277 A.D.2d 422 [2d Dept., Nov. 27, 2000]; Gray v. Gray, 266 A.D.2d 261; Smith v. City of New York, 237 A.D.2d 344; Goncalves v. Stuyvesant Dev. Assocs., 232 A.D.2d 275; M.P.S. Mktg. Servs. v. Champion Intl. Corp., 176 A.D.2d 250).