MICALIZZI v. GOMES (1997)

Supreme Court, Appellate Division, Second Department, New York.

William MICALIZZI, Appellant, v. Louis GOMES a/k/a Louis Gomez, Respondent.

Decided: May 12, 1997

Before MILLER, J.P., and THOMPSON, JOY and LUCIANO, JJ.

Bruce C. Mandia, Rye, for appellant. Robert A. Peirce, White Plains (Alaina C. Cavaliere, of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Fredman, J.), entered May 15, 1996, which granted the defendant's motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

ORDERED that the order is affirmed, with costs.

Having been served with a 90-day demand pursuant to CPLR 3216, it was incumbent upon the plaintiff to comply with the demand by filing a note of issue or by moving, before the default date, to either vacate the demand or to extend the 90-day period (see, Turman v. Amity OBG Assocs., 170 A.D.2d 668, 567 N.Y.S.2d 87; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 543 N.Y.S.2d 483). Having failed to do so, the plaintiff, to avoid the sanction of dismissal, was required to demonstrate a justifiable excuse for the delay in properly responding to the demand and that he had a meritorious cause of action (see, Papadopoulas v. R.B. Supply Corp., supra). The plaintiff has failed to satisfy either of these requirements.

MEMORANDUM BY THE COURT.

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