Opinion
November 15, 1991
Appeal from the Supreme Court, Erie County, Gossel, J.
Present — Doerr, J.P., Denman, Boomer, Green and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court abused its discretion in denying defendant's motion to dismiss plaintiff's complaint for lack of prosecution pursuant to CPLR 3216. Plaintiff contended that her efforts to schedule depositions, made on three occasions over a 31-month period, constituted justifiable excuse for her failure to file and to serve a note of issue. The record reveals, however, that plaintiff did not cooperate with defendant's efforts to schedule depositions and that she never sought to strike defendant's demand or to seek an extension of the 90-day period. Plaintiff failed to prosecute her claim as demanded by defendant, and she has failed to demonstrate any justifiable excuse for her inaction (see, Azzoto v. City of Syracuse, 176 A.D.2d 1197; Rumrill v Epting, 88 A.D.2d 1047, 1048; see also, Mason v. Simmons, 139 A.D.2d 880, 881; Meth v. Maimonides Med. Center, 99 A.D.2d 799, 800).