Rollock-Smith v. AT & T Information Systems

274 A.D.2d 425, 711 N.Y.S.2d 777, 2000 N.Y. App. Div. LEXIS 8653

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants AT&T Information Systems and Ronald Gagliano and the defendant Lee R. Underwood separately appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated June 1, 1999, which denied their motions to dismiss the complaint insofar as asserted against them for failure to prosecute and granted the plaintiffs cross motion for leave to file a note of issue.

Ordered that the order is affirmed, with one bill of costs.

Where a party is served with a 90-day notice pursuant to CPLR 3216 and fails to comply with that notice by filing a note of issue or by moving, before the default date, either to vacate the notice or extend the 90-day period (see, Hayden v Jones, 244 AD2d 316; Rubin v Baglio, 234 AD2d 534), that party must demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and the existence of a meritorious cause of action (see, Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; CPLR 3216 [e]). Contrary to the appellants’ contentions, the plaintiff provided a justifiable excuse and demonstrated a meritorious cause of action. Friedmann, J. P., Krausman, Luciano and Schmidt, JJ., concur.