Akler v. Booth Memorial Hospital Medical Center

285 A.D.2d 438, 727 N.Y.S.2d 337, 2001 N.Y. App. Div. LEXIS 7348

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Milano, J.), entered September 1, 2000, which dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

After properly being served with a 90-day notice, the plaintiffs failed to comply therewith by either filing a note of issue or moving, before the default date, to vacate the notice or extend the 90-day period (see, Turman v Amity OBG Assocs., 170 AD2d 668). Accordingly, to avoid dismissal pursuant to CPLR 3216, the plaintiffs were required to provide a reasonable excuse for their default and to demonstrate a meritorious cause of action (see, CPLR 3216; Basso v Lessing’s Inc., 274 AD2d 488). The plaintiffs failed to satisfy either requirement. Accordingly, the Supreme Court properly dismissed the complaint. Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.