Opinion
June 9, 1995
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Denman, P.J., Pine, Wesley, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendants appeal from Supreme Court's denial of their motions to dismiss the complaint for plaintiff's failure to comply with a 90-day demand pursuant to CPLR 3216. Plaintiff filed a note of issue and certificate of readiness in response to the demand, but failed to serve defendants as required by CPLR 3216. To defeat the motions, plaintiff had to show a justifiable excuse for failing to serve the note of issue within the 90-day period following defendants' demand, and that he has a meritorious cause of action (see, Cook v. Blue Ridge Ins. Co., 198 A.D.2d 795). The affidavit of plaintiff's attorney establishes law office failure as a justifiable excuse for the failure to serve the note of issue (see, Wainwright v. Lively Co., 99 A.D.2d 490, 491). The affidavit of plaintiff, although controverted by defendants Kanavel and Kowsky, demonstrates that his case has arguable merit with respect to them (see generally, Walker v. Town of Lockport, 109 A.D.2d 1102, affd 65 N.Y.2d 840; Jones v. First Fed. Sav. Loan Assn., 101 A.D.2d 1005, 1006). That affidavit is insufficient, however, to establish a meritorious cause of action against defendants County of Niagara and Niagara County Sheriff's Department. We, therefore, modify the order on appeal by granting the motion of County of Niagara and Niagara County Sheriff's Department and dismissing the complaint against them.