AGUILAR v. KNUTSON (2002)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), dated July 25, 2001, which granted the defendant's motion pursuant to CPLR 3216 to strike the note of issue and dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In a certification order dated April 5, 2000, the Supreme Court, sua sponte, directed the plaintiff to serve and file a note of issue within 90 days, and warned that the failure to comply may serve as a basis for dismissal pursuant to CPLR 3216.   Counsel for both parties signed the order.   This had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Werbin v. Locicero, 287 A.D.2d 617, 732 N.Y.S.2d 37;  Seletsky v. St. Francis Hosp., 263 A.D.2d 452, 453, 692 N.Y.S.2d 708;  Safina v. Queens-Long Is. Med. Group, 238 A.D.2d 395, 657 N.Y.S.2d 337;  Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653, 646 N.Y.S.2d 15).   Thus, having received a 90-day notice, the plaintiff was required either to file a note of issue within 90 days or to move pursuant to CPLR 2004 prior to the default date for an extension of time within which to comply (see Werbin v. Locicero, supra;  Pollucci v. Rizzo, 261 A.D.2d 594, 690 N.Y.S.2d 667;  Safina v. Queens-Long Is. Med. Group, supra;  Scott v. Columbia Mem. Hosp., 134 A.D.2d 792, 522 N.Y.S.2d 257;  Salerno v. Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Center, 88 A.D.2d 637, 638, 450 N.Y.S.2d 227).   The plaintiff did neither.

To avoid dismissal upon the defendant's motion, the plaintiff was required to show a justifiable excuse for the delay and a meritorious cause of action (see CPLR 3216[e];  Werbin v. Locicero, supra;  Pollucci v. Rizzo, supra;  Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483).   Since the plaintiff failed to offer any excuse to justify the 14-month delay after the 90-day notice in filing the note of issue, and she did not offer an affidavit of merit, the Supreme Court properly granted the defendant's motion.