Tierney v. OB-GYN Associates of Ithaca

— Appeal from an order of the Supreme Court (Monserrate, J.), entered March 18, 1991 [927] in Tompkins County, which granted defendants’ motion to dismiss the complaint for failure to prosecute. Once plaintiffs were served with the 90-day demand pursuant to CPLR 3216, they should have either complied with the notice by filing a note of issue or moved before the default date to extend the 90-day time period (see, Papadopoulas v R.B. Supply Corp., 152 AD2d 552, 553). Instead, just a few days prior to the expiration date, plaintiffs’ counsel sent a letter to defendants’ counsel indicating that a note of issue would be filed if defendants agreed to a deposition date. No further action was taken until defendants moved to dismiss, almost three years after the expiration of the 90-day period. To avoid having their action dismissed, plaintiffs were required to demonstrate both a justifiable excuse for the delay and a meritorious cause of action (see, Cleary v Starkweather, 165 AD2d 967; Juracka v Ferrara, 137 AD2d 921, 922, lv dismissed 72 NY2d 840). With respect to the latter issue, plaintiffs failed to submit the required expert medical opinion evidence (see, Mosberg v Elahi, 80 NY2d 941, affg 176 AD2d 710; Perez v Long Is. Jewish-Hillside Med. Ctr., 173 AD2d 530, 531). Even if we accept plaintiffs’ contention that their physician’s unsworn letter satisfied this requirement (cf., Franck v CNY Anesthesia Group, 175 AD2d 605; Brice v Westchester Community Health Plan, 143 AD2d 170, 171), plaintiffs nevertheless failed to establish a justifiable excuse for the delay. The record reveals that plaintiffs did not actively pursue this case. Although they claim that defendants contributed to the delay by refusing to be deposed, there is nothing in the record to support this assertion and plaintiffs never complained of defendants’ actions until the present motion (see, Turman v Amity OBG Assocs., 170 AD2d 668, 669; Monteferrante v New York City Fire Dept., 74 AD2d 538, affd 53 NY2d 653). Under the circumstances, Supreme Court did not abuse its discretion in dismissing the action for failure to prosecute (see, Brice v Westchester Community Health Plan, supra, at 171). Weiss, P. J., Mikoll, Mercure and Crew III, concur.