Opinion
2001-05337
Submitted January 30, 2002.
February 25, 2002.
In an action to recover damages for breach of an insurance contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Burke, J.), which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3216.
Glenn J. Wurzel, Hempstead, N.Y., for appellant.
Bruno, Gerbino Macchia, LLP, Melville, N.Y. (Steven D. Brower of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, SONDRA MILLER, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, JJ.
ORDERED that the order is affirmed, with costs.
Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff was obligated to file a note of issue or move, before the default date, to either vacate the notice or extend the 90-day period (see, Moran v. Pathmark Stores, 278 A.D.2d 208; Rubin v. Baglio, 234 A.D.2d 534; Lopez v. Pathmark Supermarket, 229 A.D.2d 566; Wilson v. Nembhardt, 180 A.D.2d 731). The plaintiff did neither. Accordingly, to avoid dismissal, the plaintiff was required to show 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]; Moran v. Pathmark Stores, supra; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552). We agree with the Supreme Court that the plaintiff failed to show a justifiable excuse for his delay. Thus, the complaint was properly dismissed.
PRUDENTI, P.J., FLORIO, S. MILLER, FRIEDMANN and ADAMS, JJ., concur.