TIMKO v. LORETO (1999)

In an action to recover damages for dental malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated July 2, 1998, as denied his motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

 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, either to vacate the notice or extend the 90-day period (see, Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483).   The plaintiff failed to do so.   Accordingly, in order to avoid the sanction of dismissal, she was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and that she had a meritorious cause of action (Allone v. University Hosp. of New York Univ. Med. Ctr., 249 A.D.2d 430, 432, 671 N.Y.S.2d 500;  Spierto v. Pennisi, 223 A.D.2d 537, 636 N.Y.S.2d 118).   The plaintiff failed to meet this burden.

In light of our determination, we need not address the appellant's remaining contention.

MEMORANDUM BY THE COURT.