Opinion
01-04961
Submitted April 10, 2002
May 28, 2002.
In an action, inter alia, for an accounting, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Berler, J.), dated April 17, 2001, which denied her oral application to extend her time to file a note of issue, and granted the defendants' oral application to dismiss the complaint.
Bart L. Nason, P.C., New York, N.Y., for appellant.
Michael D. Solomon, Levittown, N.Y. (Peter M. Zirbes of counsel), for respondents Superior Electric/Datacom, Inc., Sharon Cirlincione, and Jerry Cirlincione, a/k/a Jerone Cirlincione.
A. GAIL PRUDENTI, P.J., SONDRA MILLER, CORNELIUS J. O'BRIEN, LEO F. McGINITY, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
ORDERED that the order is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff was required either to file a note of issue or to move for an extension of time within which to comply pursuant to CPLR 2004 (see Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653, 654; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 553). Here, the plaintiff initially did request an extension and was given one by the Supreme Court, but was warned that no further extensions would be given. It is undisputed that the plaintiff did not file the note of issue within the time granted by the court. Thus, the plaintiff could avoid dismissal only by establishing a reasonable excuse for the noncompliance and a meritorious cause of action (see Trust Co. of N.J. v. Genser, 271 A.D.2d 524, 526; Pollucci v. Rizzo, 261 A.D.2d 594, 595). Having shown neither, the Supreme Court properly dismissed the complaint.
PRUDENTI, P.J., S. MILLER, O'BRIEN, McGINITY and CRANE, JJ., concur.