RANDOLPH v. CORNELL (2006)

In an action, inter alia, to recover damages for medical malpractice, the defendant Charles N. Cornell appeals from an order of the Supreme Court, Queens County (Hart, J.), dated May 5, 2005, which denied his motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him for failure to prosecute.

ORDERED that the order is reversed, on the law and as an exercise of discretion, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

 Where a party is served with a 90-day notice pursuant to CPLR 3216, it is incumbent upon that party to comply with the notice 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, lv. denied 6 N.Y.3d 703, 811 N.Y.S.2d 335, 844 N.E.2d 790;  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 plaintiff did neither.   Accordingly, to avoid dismissal, the plaintiff was required to show both a justifiable excuse for the delay in properly responding to the 90-day notice, and the existence of a meritorious cause of action (see CPLR 3216 [e];  Johnson v. State Farm Mut. Auto. Ins. Co., 291 A.D.2d 533, 737 N.Y.S.2d 867;  Moran v. Pathmark Stores, 278 A.D.2d 208, 209, 717 N.Y.S.2d 302).   The plaintiff failed to show 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;  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;  Feinblum v. Dybner, 197 A.D.2d 560, 604 N.Y.S.2d 754).   Accordingly, the Supreme Court should have granted the appellant's motion to dismiss the complaint insofar as asserted against him.