Cangemi v. Cassidy

• Decision Date: 20 December 1999
• Citation: 699 N.Y.S.2d 910,267 A.D.2d 344
• Court: New York Supreme Court — Appellate Division
• Parties: BRANDON CANGEMI et al., Respondents,<BR>v.<BR>RYAN CASSIDY, Appellant, et al., Defendant.

267 A.D.2d 344

699 N.Y.S.2d 910

BRANDON CANGEMI et al., Respondents,

v.RYAN CASSIDY, Appellant, et al., Defendant.

Decided December 20, 1999.

O'Brien, J. P., Sullivan, Goldstein, Luciano and Feuerstein, JJ., concur.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

It is well settled that when a party is served with a 90-day notice pursuant to CPLR 3216 and fails to comply with the notice by either filing a note of issue or moving, before the default date, to vacate the notice or extend the 90-day period, that party must demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice and the existence of a meritorious cause of action (see,CPLR 3216 [e];Matter of Simmons v McSimmons, Inc.,261 AD2d 547;Allone v University Hosp.,249 AD2d 430;Papadopoulas v R.B. Supply Corp.,152 AD2d 552, 553).Since the plaintiffs failed to comply with the Supreme Court's certification order, which adequately placed them on notice that the failure to file a note of issue within 90 days would serve as a basis for dismissal pursuant...