Chong Suk Rose v. Heil Trailer International

284 A.D.2d 445, 726 N.Y.S.2d 871, 2001 N.Y. App. Div. LEXIS 6335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for wrongful death, the defendants Heil Trailer International, Heil Trailer Company, and Heil Company appeal from so much of an order of the Supreme Court, Queens County (LaTorella, J.), dated May 17, 2000, as denied their motion to dismiss the action insofar as asserted against them pursuant to CPLR 3216 for failure to prosecute, and the defendant Mack Trucks, Inc., appeals from so much of an order of the same court, also dated May 17, 2000, as denied its separate motion for the same relief.

Ordered that the orders are reversed insofar as appealed from, on the law, with costs, the motions are granted, and the complaint is dismissed.

To avoid a default after receipt of a 90-day demand pursuant to CPLR 3216, the plaintiff was required to comply therewith either by timely filing a note of issue or by moving before the default date to vacate the notice or extend the 90-day period (see, Burke v Klein, 269 AD2d 348). Having failed to do so, the plaintiff, to avoid dismissal, was required to demonstrate a justifiable excuse for the delay in properly responding to the demand and the existence of a meritorious claim (see, Hayden v Jones, 244 AD2d 316). The plaintiff failed to meet these requirements. O’Brien, J. P., Krausman, Goldstein, Schmidt and Crane, JJ., concur.