Terry v. Southern Container

214 A.D.2d 983, 627 N.Y.S.2d 498, 1995 N.Y. App. Div. LEXIS 6719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1995
• Status: Published

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. To defeat the motion, plaintiff had to show a justifiable excuse for failure to file a note of issue within the 90-day period and a good and meritorious cause of action (see, CPLR 3216 [e]; Papadopoulas v R.B. Supply Corp., 152 AD2d 552, 553; Highlands Ins. Co. v Maddena Constr. Co., 109 AD2d 1071, 1072). Plaintiff failed to make the required showing (see, Richter v Dunlap, 214 AD2d 983 [decided herewith]). Because five years had elapsed between commencement of the action and service of the 90-day demand, and because plaintiff’s counsel acknowledged her inaction after receipt of that demand, we conclude that plaintiff’s assertion of law office failure does not constitute a justifiable excuse (see, eg., Nichols v Agents Serv. Corp., 133 AD2d 912, 914). Moreover, the conclusory affidavit of plaintiff, submitted in opposition to a previous summary judgment motion, is insufficient to establish that he had a meritorious cause of action (see, Richter v Dunlap, supra; Zent v Board of Educ., 174 AD2d 1047, 1048; Billings v Berkshire Mut. Ins. Co., 149 AD2d 895, 896-897; Nichols v Agents Serv. Corp., supra, at 914; Meth v Maimonides Med. Ctr., 99 AD2d 799, 800). (Appeal from Order of Supreme Court, Oswego County, Nicholson, J.—Dismiss Complaint.) Present—Denman, P. J., Lawton, Wesley, Balio and Davis, JJ.