Zelik v. POLICY SIGNING & ACCOUNTING CENTRE LIMITED

• Decision Date: 16 February 1999
• Court: New York Supreme Court — Appellate Division
• Parties: JOSEPH ZELIK, Respondent,<BR>v.<BR>POLICY SIGNING & ACCOUNTING CENTRE LIMITED et al., Appellants.

258 A.D.2d 580

684 N.Y.S.2d 793

JOSEPH ZELIK, Respondent,

v.POLICY SIGNING & ACCOUNTING CENTRE LIMITED et al., Appellants.

Decided February 16, 1999.

Bracken, J.P., Thompson, Goldstein and McGinity, JJ., concur.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the complaint is dismissed.

The Supreme Court improperly denied the defendants' motion to dismiss the complaint. In response to the defendants' 90-day notice pursuant to CPLR 3216, the plaintiff neither timely filed a note of issue nor moved before the default date to vacate the notice or extend the 90-day period. Thus, the defendants were entitled to dismissal of the complaint unless the plaintiff demonstrated both a justifiable excuse for failing to respond to the 90-day notice, and the existence of a meritorious cause of action (see, Levin v Levin, 256 AD2d 447; Miranda v Town of Blooming Grove, 254 AD2d 397; Russo v Automotive Rentals, 247 AD2d 603, 604). The plaintiff offered neither in the instant case, and therefore, his complaint should have been dismissed (see, Baczkowski v Collins Constr. Co., 89 NY2d 499; Jones v Oglesby, 254 AD2d 393; Levin v Levin, supra).