DESORMEAU v. Joseph Laurenti, et al., third-party defendants-respondents. (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jonas, J.), dated August 16, 2006, which denied his motion to vacate the dismissal of the action based on his failure to timely file a note of issue, and to restore the action.

ORDERED that the order is affirmed, with costs.

This action was dismissed upon the plaintiff's failure to comply with a certification order which constituted a valid 90-day notice pursuant to CPLR 3216 (see CPLR 3216;  Berktas v. McMillian, 40 A.D.3d 563, 835 N.Y.S.2d 388;  Giannoccoli v. One Cent. Park W. Assoc., 15 A.D.3d 348, 790 N.Y.S.2d 159).   To restore this action, the plaintiff was required to demonstrate a justifiable excuse for his failure to properly respond to the 90-day notice and a meritorious claim (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;  Chaudhry v. Ziomek, 21 A.D.3d 922, 924, 801 N.Y.S.2d 603).   The plaintiff did not make that showing, since he failed to demonstrate a reasonable excuse for neglecting to comply with the certification order and a follow-up letter from the court, and he failed to adequately explain the approximately three-year gap in the treatment of his continuing symptoms (see Berktas v. McMillian, supra;  Osgood v. Martes, 39 A.D.3d 516, 831 N.Y.S.2d 724;  Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119;  Li v. Woo Sung Yun, 27 A.D.3d 624, 812 N.Y.S.2d 604;  Neugebauer v. Gill, 19 A.D.3d 567, 567-568, 797 N.Y.S.2d 541).   Accordingly, the Supreme Court properly denied the plaintiff's motion.