WORTHY v. RAMOS (2005)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Joseph, J.), dated January 21, 2005, which granted the plaintiff's motion to vacate an order entered June 28, 2001, dismissing the action pursuant to CPLR 3216, and for leave to file a late note of issue.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is denied, and the order dated June 28, 2001, is reinstated.

By order entered June 28, 2001, the Supreme Court, sua sponte, dismissed the action upon the plaintiff's failure to file a note of issue within 90 days, as directed in a prior certification order.   The plaintiff was served in July 2001 with a copy of the order dismissing the action.   Since the plaintiff did not move to vacate her default on the ground of excusable neglect until November 2004, more than three years after obtaining actual notice of the order dismissing the action, the motion should have been denied as untimely (see CPLR 5015[a][1];  Vinikour v. Jamaica Hosp., 2 A.D.3d 518, 767 N.Y.S.2d 873;  Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 197, 725 N.Y.S.2d 57).