Opinion
2002-00402
Submitted December 4, 2002.
December 30, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated November 16, 2000, which granted the motion of the defendant Herbert Construction Company pursuant to CPLR 3216(a) to dismiss the complaint insofar as asserted against it for failure to prosecute.
Benedict P. Morelli Associates, P.C., New York, N.Y. (Laurie DiPreta of counsel), for appellant.
Aaronson Rappaport Feinstein Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
CPLR 3216 "provides a party confronted with a less than diligent adversary with a means to expedite the prosecution of the action by serving upon him a written demand that he file a note of issue within 90 days, or in the event of a default, risk dismissal of the action (Carte v. Segall, 134 A.D.2d 397, 398; see Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552, 553). To avoid a default, "a plaintiff served with a 90-day notice must comply either by timely filing a note of issue or moving for an extension of time within which to comply pursuant to CPLR 2004" (Carte v. Segall, supra at 398).
"Having failed to pursue either of the foregoing options, the plaintiff was obligated to demonstrate a reasonable excuse and a good and meritorious cause of action to avoid the sanction of dismissal" (Papadopoulas v. R.B. Supply Corp., supra at 553; see CPLR 3216[e]; Kwiatkowska v. Aramburu, 133 A.D.2d 810). The plaintiff failed to satisfy this standard.
FEUERSTEIN, J.P., KRAUSMAN, LUCIANO, TOWNES and COZIER, JJ., concur.