Opinion
2001-08791
Submitted October 2, 2002.
October 28, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered September 4, 2001, which granted the defendants' motion pursuant to CPLR 3126 to dismiss the complaint and denied her cross motion to vacate her default.
Barry Siskin, New York, N.Y., for appellant.
Nesci Keane Piekarski Keogh Corrigan, White Plains, N.Y. (Thomas J. Keane of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
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 extend the 90-day period (see Baczkowski v. Collins Constru. Co., 89 N.Y.2d 499, 503; Di Simone v. Good Samaritan Hosp., 288 A.D.2d 252; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 553). The plaintiff failed to do so. Accordingly, to avoid dismissal, the plaintiff was required to demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice and the existence of a meritorious cause of action (see Baczkowski v. Collins Constru., Co. supra at 503; Di Simone v. Good Samaritan Hosp., supra). Under the circumstances presented here, including the four-year lack of prosecution of this case, the plaintiff did not demonstrate a justifiable excuse, and, therefore, the Supreme Court properly exercised its discretion in granting the motion to dismiss and denying the plaintiff's cross motion to vacate her default.
ALTMAN, J.P., S. MILLER, McGINITY, SCHMIDT and RIVERA, JJ., concur.