Opinion
June 9, 1997
Appeal from the Supreme Court, Kings County (Schneier, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendant's motion is granted, and the complaint is dismissed.
"Having been served with a 90-day notice pursuant to CPLR 3216, it was incumbent upon the plaintiff to comply with the notice by filing a note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period (see, Turman v. Amity OBG Assocs., 170 A.D.2d 668; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552). The plaintiff failed to do so. Accordingly, in order to avoid the sanction of dismissal, [he] was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and that [he] had a meritorious cause of action (Papadopoulas v. R.B. Supply Corp., supra)" (Spierto v. Pennisi, 223 A.D.2d 537, 538; see, Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499; Safina v. Queens-Long Is. Med. Group, 238 A.D.2d 395). Since the plaintiff failed to meet this burden, his complaint should have been dismissed (see, Spierto v. Pennisi, supra; Baczkowski v. Collins Constr. Co., supra; Safina v. Queens-Long Is. Med. Group, supra).
Miller, J.P., Thompson, Joy and Luciano, JJ., concur.