Kominik v. Rodriguez

287 A.D.2d 548, 731 N.Y.S.2d 668, 2001 N.Y. App. Div. LEXIS 9557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for personal injuries, the defendants Elias Rodriguez and Harbor View Transportation of Staten Island, Inc., appeal from an order of the Supreme Court, Kings County (Barron, J.), dated May 24, 2001, which, inter alia, denied their cross 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, it was incumbent upon the plaintiff to comply with the notice by filing a note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period (see, Wilson v Nembhardt, 180 AD2d 731, 733; Rubin v Baglio, 234 AD2d 534; Lopez v Pathmark Supermarket, 229 AD2d 566). The plaintiff failed to do either. Accordingly, to avoid dismissal, she was required to demonstrate 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]; Papadopoulas v R.B. Supply Corp., 152 AD2d 552).

The Supreme Court providently exercised its discretion in denying the cross motion of the defendants Elias Rodriguez and Harbor View Transportation of Staten Island, Inc., as the plaintiff demonstrated both a reasonable excuse for her delay and the existence of a meritorious cause of action (see, CPLR 2005; Wynne v Wagner, 262 AD2d 556; Roussodimou v Zafiriadis, 238 AD2d 568).

The appellants’ remaining contention is without merit. Bracken, P. J., Krausman, Luciano, Smith and Adams, JJ., concur.