SELETSKY v. ST FRANCIS HOSPITAL (1999)

In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Joseph, J.), dated August 3, 1998, which denied their motion pursuant to CPLR 3216 to dismiss the complaint for failure to file a note of issue.

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

 On January 26, 1998, the Supreme Court issued an order stating, inter alia, that counsel for the plaintiffs and the defendants certified that all discovery and pretrial motions were complete.   The Supreme Court sua sponte directed the plaintiffs to serve and file a note of issue within 90 days.   Moreover, the order stated that failure to comply within 90 days might serve as a basis for dismissal pursuant to CPLR 3216.   The order constituted a valid 90-day notice pursuant to CPLR 3216 (see, 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).   The plaintiffs failed to comply with the 90-day notice either by timely filing a note of issue or moving for an extension of time within which to comply pursuant to CPLR 2004 (see, Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483).   The plaintiffs did not demonstrate a reasonable excuse for their noncompliance and a meritorious cause of action (see, CPLR 3216[e] ).   Therefore, the motion is granted.

MEMORANDUM BY THE COURT.