Sturkey v. Ramdas

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Price, J.), dated March 13, 2002, which denied his motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. The plaintiffs, having been served with a 90-day demand pursuant to CPLR 3216 (b) (3), were required to comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period (see Raffa v Cook, 289 AD2d 385 [2001]; Chong Suk Rose v Heil Trailer Intl., 284 AD2d 445 [2001]). The plaintiffs failed to meet any of these requirements. In order to defeat the defendant’s subsequent motion to dismiss, the plaintiffs were required to demonstrate a justifiable excuse for the delay in properly responding to the demand and the existence of a meritorious action (see Raffa v Cook, supra). The plaintiffs did neither. Accordingly, the defendant’s motion to dismiss should have been granted. Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.