Gache v. Incorporated Village of Freeport

• Decision Date: 14 March 1994
• Citation: 609 N.Y.S.2d 42,202 A.D.2d 470
• Parties: Cary W. GACHE, Appellant, v. INCORPORATED VILLAGE OF FREEPORT, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 42

609 N.Y.S.2d 42

202 A.D.2d 470

Cary W. GACHE, Appellant, v. INCORPORATED VILLAGE OF FREEPORT, et al., Respondents.

Supreme Court, Appellate Division, Second Department.

March 14, 1994.

Eugene Schaffer, Freeport (John F. Clennan, of counsel), for appellant.

Montfort, Healy, McGuire & Salley, Garden City (E. Richard Rimmels, Jr., and Edward R. Rimmels, of counsel), for respondents.

Before ROSENBLATT, J.P., and RITTER, PIZZUTO and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated February 25, 1992, which granted the defendants' motion to dismiss the action pursuant to CPLR 3216 for want of prosecution.

ORDERED that the order is affirmed, with costs.

Upon being served with a 90-day demand pursuant to CPLR 3216, the plaintiff was required to comply therewith by filing a note of issue or by moving, before the default date, to either vacate the notice or to extend the 90-day period (see, Socoloff v. New York Eye & Ear Infirmary, 174 A.D.2d 727, 573 N.Y.S.2d 874; Turman v. Amity OBG Assocs., 170 A.D.2d 668, 567 N.Y.S.2d 87). The plaintiff failed to respond to the 90-day demand notice. Thus, to avoid the sanction of dismissal, it was incumbent upon the plaintiff "to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and that [he] had a meritorious cause of action" (Turman v. Amity OBG Assocs., supra, at 668, 567 N.Y.S.2d 87; see also, CPLR 3216[e]. We conclude that the plaintiff has not satisfied either element of his evidentiary burden. Specifically, no acceptable excuse for the plaintiff's delay was proffered and, further, the plaintiff cannot be said to have demonstrated a meritorious cause of action, since he did not establish the existence of a serious injury, as defined by Insurance Law § 5102(d). Accordingly, the Supreme Court properly granted the defendants' motion to dismiss the action pursuant to CPLR 3216 for want of prosecution.