Opinion
February 14, 1984
In an action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Westchester County (Leggett, J.), entered December 14, 1982, which denied her motion to dismiss plaintiffs' action for failure to prosecute. Order reversed, on the law, with costs, motion granted, and action dismissed. Plaintiffs failed to comply with a 90-day notice served upon them pursuant to CPLR 3216. They also did not seek to extend the time to comply or to vacate the notice. In opposing the instant motion to dismiss, made in August, 1982, four months after service of the 90-day notice, plaintiffs failed to furnish an affidavit of merit. In light of the delay in filing the note of issue, such an affidavit was mandatory. Its omission necessitates the granting of this motion (see, e.g., La Buda v Brookhaven Mem. Hosp. Med. Center, 98 A.D.2d 711; Savino v Guido, 81 A.D.2d 860). Titone, J.P., Mangano, Gibbons and Brown, JJ., concur.