Opinion
February 16, 1999
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the complaint is dismissed.
The Supreme Court improperly denied the defendants' motion to dismiss the complaint. In response to the defendants' 90-day notice pursuant to CPLR 3216, the plaintiff neither timely filed a note of issue nor moved before the default date to vacate the notice or extend the 90-day period. Thus, the defendants were entitled to dismissal of the complaint unless the plaintiff demonstrated both a justifiable excuse for failing to respond to the 90-day notice, and the existence of a meritorious cause of action ( see, Levin v. Levin, 256 A.D.2d 447; Miranda v. Town of Blooming Grove, 254 A.D.2d 397; Russo v. Automotive Rentals, 247 A.D.2d 603, 604). The plaintiff offered neither in the instant case, and therefore, his complaint should have been dismissed ( see, Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499; Jones v. Oglesby, 254 A.D.2d 393; Levin v. Levin, supra).
Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.