SERBY v. LONG ISLAND JEWISH MEDICAL CENTER (2006)

In an action to recover damages for medical malpractice and wrongful death, the defendants Long Island Jewish Medical Center and Harold Thies separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated May 18, 2005, as denied their respective motions pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them for failure to prosecute.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with one bill of costs, and the motions to dismiss the complaint insofar as asserted against the defendants Long Island Jewish Medical Center and Harold Thies are granted.

 It is incumbent upon a party served with a 90-day notice pursuant to CPLR 3216 to comply with it 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 Chaudhry v. Ziomek, 21 A.D.3d 922, 924, 801 N.Y.S.2d 603;  Allen v. Makhnevich, 15 A.D.3d 425, 426, 789 N.Y.S.2d 450;  Brady v. Benenson Capital Co., 2 A.D.3d 382, 767 N.Y.S.2d 787).   The plaintiffs did neither.   Accordingly, to avoid dismissal, the plaintiffs were required to show both a “justifiable excuse for the delay and a good and meritorious cause of action” (CPLR 3216[e];  see Sharpe v. Osorio, 21 A.D.3d 467, 800 N.Y.S.2d 213;  Estate of Hamilton v. Nassau Suffolk Home Health Care, 1 A.D.3d 474, 767 N.Y.S.2d 230;  Aguilar v. Knutson, 296 A.D.2d 562, 747 N.Y.S.2d 517).   The plaintiffs failed to submit evidentiary proof in admissible form sufficient to demonstrate the existence of a meritorious cause of action (see Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353;  Fiore v. Galang, 64 N.Y.2d 999, 1000-1001, 489 N.Y.S.2d 47, 478 N.E.2d 188;  Salch v. Paratore, 60 N.Y.2d 851, 852, 470 N.Y.S.2d 138, 458 N.E.2d 379;  Nicolaides v. Nyack Hosp., 279 A.D.2d 617, 618, 719 N.Y.S.2d 710;  Burke v. Klein, 269 A.D.2d 348, 348-349, 703 N.Y.S.2d 203;  Abelard v. Interfaith Med. Ctr., 202 A.D.2d 615, 616, 609 N.Y.S.2d 638, affd. 219 A.D.2d 573, 631 N.Y.S.2d 521).   Furthermore, the plaintiffs failed to offer a reasonable excuse to justify their failure to comply with the 90-day notices or their delay in the prosecution of this action.   Accordingly, the Supreme Court improvidently exercised its discretion in denying the appellants' respective motions to dismiss the complaint insofar as asserted against them.