Opinion
December 21, 1990
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Balio, JJ.
Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: The court erred in dismissing as moot defendant's motion to dismiss the complaint for failure to file a note of issue within 90 days of the demand. Plaintiff failed to provide an affidavit demonstrating a justifiable excuse for the delay and a meritorious cause of action (see, CPLR 3216 [e]; McLennan v. County of Erie, 154 A.D.2d 909; Granville v. Rappold Trucking Co., 134 A.D.2d 914; Charlotte Lake Riv. Assocs. v. American Ins. Co., 130 A.D.2d 947, lv. denied 70 N.Y.2d 605; Skeet v. Rashid, 124 A.D.2d 1035; Cox v. Edmister, 122 A.D.2d 557, appeal dismissed 68 N.Y.2d 900, lv. denied 69 N.Y.2d 603; MacLeod v. Nolte, 106 A.D.2d 860). The motion was not rendered moot when plaintiff served and filed the note of issue on the return day of the motion almost 150 days after the demand. We therefore remit the matter to Supreme Court to hear and consider the motion.