FELIX v. Sprikler Man, Inc., respondent. (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered June 14, 2007, which denied her motion to vacate the dismissal of the action pursuant to CPLR 3216 and to restore the action to the trial calendar.

ORDERED that the order is affirmed, without costs or disbursements.

The certification order dated January 4, 2006, directing the plaintiff to file a note of issue within 90 days, and warning that the action would be deemed dismissed without further order of the court if the plaintiff failed to comply with this directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783, 851 N.Y.S.2d 209;  Louis v. MTA Long Is. Bus Co., 44 A.D.3d 628, 848 N.Y.S.2d 177;  C & S Realty, Inc. v. Soloff, 22 A.D.3d 515, 801 N.Y.S.2d 772).   Although the certification order was not signed by the plaintiff's attorney, the record demonstrates that the plaintiff's attorney was present at the certification conference and received a copy of the order.   Having, in effect, received a 90-day notice (see C & S Realty, Inc. v. Soloff, 22 A.D.3d 515, 801 N.Y.S.2d 772;  Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395), the plaintiff was required to timely file a note of issue or move, before the default date, to vacate the notice or to extend the 90-day period (see Balancio v. American Opt. Corp., 66 N.Y.2d 750, 751, 497 N.Y.S.2d 360, 488 N.E.2d 106;  Fraga v. Smithaven Open MRI, 6 A.D.3d 494, 774 N.Y.S.2d 415).   The plaintiff failed to do so, and the action was dismissed pursuant to CPLR 3216.

In order to vacate the dismissal of the action and restore it to the trial calendar, the plaintiff was required to establish a reasonable excuse for her failure to properly respond to the 90-day notice, and the existence of a meritorious cause of action (see CPLR 3216[e];  Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460;  Myers v. Polytechnic Preparatory Country Day School, 50 A.D.3d 868, 855 N.Y.S.2d 650;  Lugauer v. Forest City Ratner Co., 44 A.D.3d 829, 843 N.Y.S.2d 456;  Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119).   The plaintiff did not satisfy either requirement.   Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to vacate the dismissal of the action and to restore it to the trial calendar.