Cox v. Edmister

122 A.D.2d 557, 505 N.Y.S.2d 20, 1986 N.Y. App. Div. LEXIS 59829

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1986
• Status: Published

Opinion

— Order unanimously reversed, on the law, without costs, and motions granted. Memorandum: Our court has been consistent in holding that, to defeat a motion to dismiss pursuant to CPLR 3216, plaintiff must show a justifiable excuse for failure to file a note of issue within the 90-day period and a meritorious cause of action (see, e.g., Highlands Ins. Co. v Maddena Constr. Co., 109 AD2d 1071, 1072; MacLeod v Nolte, 106 AD2d 860; Jones v First Fed. Sav. & Loan Assn., 101 AD2d 1005; Abrams, Kochman, Rathskeller v Esquire Motels, 79 AD2d 879). On this record, plaintiff has failed to show either a justifiable excuse or that he has a meritorious cause of action. Absent such a showing, it was an abuse of discretion for Special Term to deny the motion (MacLeod v Nolte, supra).

Plaintiff’s reliance on our decision in Foisy v Penn Aluminum (31 AD2d 783) is misplaced. In Foisy we were concerned only with general delay. (Appeals from order of the Supreme Court, Niagara County, Gossel, J. — dismiss action.) Present— Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.