Cook v. Blue Ridge Insurance

198 A.D.2d 795, 605 N.Y.S.2d 1015, 1993 N.Y. App. Div. LEXIS 11398

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant’s motion to dismiss the complaint pursuant to CPLR 3216. In order to defeat defendant’s motion, it was incumbent upon plaintiff to show a justifiable excuse for failure to file a note of issue within the 90-day period following defendant’s demand, and to establish that he has a meritorious cause of action (see, CPLR 3216 [e]; Zent v Board of Educ., 174 AD2d 1047; Charlotte Lake Riv. Assocs. v American Ins. Co., 130 AD2d 947, lv denied 70 NY2d 605). The affidavit of plaintiff’s attorney, submitted in opposition to the motion, does not provide a sufficient excuse for failure to comply with the demand and does not address the merits of the action (see, Zent v Board of Educ., supra; Cox v Edmister, 122 AD2d 557, appeal dismissed 68 NY2d 900). (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Dismiss Complaint.) Present — Callahan, J. P., Green, Fallon, Boomer and Davis, JJ.