Austin v. County of Madison

Mercure, J. Appeal from an order of the Supreme Court (Tait, Jr., J.), entered December 13, 1989 in Madison County, which conditionally denied defendant’s motion to dismiss the complaint for failure to prosecute. This action was commenced on January 14, 1985 and issue was joined on February 28, 1985. On April 15, 1988, defendant served a 90-day demand pursuant to CPLR 3216 (b) (3). During the remaining portion of 1988, examinations before trial were conducted, updated medical reports were exchanged and defendant served first and second amended answers. On May 5, 1989, defendant served a further 90-day demand, conforming to the requirements of CPLR 3216 (b) (3), received by plain [1016] tiffs’ attorney on May 6, 1989. On October 20, 1989, defendant moved to dismiss the complaint pursuant to CPLR 3216 (a), alleging that no note of issue had been filed and that the action was not on the calendar. Plaintiffs did not oppose the motion. Supreme Court conditionally denied the motion, granting plaintiffs until November 27, 1989 to file a note of issue. Defendant appeals. Plaintiffs’ failure to oppose the motion with a showing of (1) justifiable excuse for the failure to file a note of issue within 90 days of defendant’s demand and (2) a meritorious cause of action (see, CPLR 3216 [e]) required Supreme Court to dismiss the complaint without conditions (see, Danskin v Gunther, 155 AD2d 859; Juracka v Ferrara, 137 AD2d 921, 923, lv dismissed 72 NY2d 840, lv denied 74 NY2d 642). Order modified, on the law, without costs, by striking the conditions attached to the granting of the motion; complaint dismissed, with prejudice; and, as so modified, affirmed. Casey, J. P., Mikoll, Yesawich, Jr., Levine and Mercure, JJ., concur.