Novo v. Roth

Order, Supreme Court, New York County (Louis York, J.), entered December 4, 2002, which denied plaintiffs’ motion to vacate an earlier dismissal of their action for failure to file a timely note of issue, unanimously affirmed, without costs. Plaintiffs have failed to offer a reasonable excuse for not complying with the court’s 90-day notice to file a note of issue. Counsel’s absence from his office during the week the note was due does not explain why someone else could not have done the filing, or why it was not simply filed sooner (see Gayle v Parker, 300 AD2d 145 [2002]). In any event, plaintiffs have failed to demonstrate merit to their cause. Although they allege certain acts of malpractice, they have not asserted facts sufficient to make a prima facie case that but for these alleged acts of negligence they would have achieved a better result in the underlying action (Geraci v Bauman, Greene & Kunkis, 171 AD2d 454 [1991], appeal dismissed 78 NY2d 907 [1991]). The record also supports the conclusion that plaintiffs have been dilatory in the prosecution of this action. Concur—Buckley, RJ., Nardelli, Sullivan and Lerner, JJ.