Johnson v. State Farm Mutual Automobile Insurance

291 A.D.2d 533, 737 N.Y.S.2d 867, 2002 N.Y. App. Div. LEXIS 1952

Opinion

—In an action to recover damages for breach of an insurance contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Burke, J.), which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

Ordered that the order is affirmed, with costs.

Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff was obligated to file a note of issue or move, before the default date, to either vacate the notice or extend the 90-day period (see, Moran v Pathmark Stores, 278 AD2d 208; Rubin v Baglio, 234 AD2d 534; Lopez v Pathmark Supermarket, 229 AD2d 566; Wilson v Nembhardt, 180 AD2d 731). The plaintiff did neither. Accordingly, to avoid dismissal, the plaintiff was required to show both a justifiable excuse for the delay in properly responding to the 90-day notice, and the existence of a meritorious cause of action (see, CPLR 3216 [e]; Moran v Pathmark Stores, supra; Papadopoulas v R.B. Supply Corp., 152 AD2d 552). We agree with the Supreme Court that the plaintiff failed to show a justifiable excuse for his delay. Thus, the complaint was properly dismissed. Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.