Vijax Corp. v. Jacobs , 704 N.Y.S.2d 850 ( 2000 )

—In an action to recover damages for goods sold and delivered and on an account stated, the plaintiff appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated April 23, 1999, which granted that branch of the defendant’s motion which was to dismiss the action for want of prosecution and denied, as academic, its cross motion for an extension of time to file a note of issue.

Ordered that the order is affirmed, with costs.

After the defendant served the plaintiff with a 90-day notice pursuant to CPLR 3216, the plaintiff had to either file a note of issue or move within 90 days to vacate the notice or extend the 90-day period (see, Zelik v Policy Signing & Accounting Centre, 258 AD2d 580). The plaintiff did neither. Accordingly, to avoid dismissal, the plaintiff was required to demonstrate both a justifiable excuse for the delay in responding to the 90-day notice and the existence of a meritorious cause of action (see, CPLR 3216 [el; Papadopoulas v R.B. Supply Corp., 152 AD2d 552).

The only excuse proffered by the plaintiff was that its attorney had neglected the action. Under the circumstances of this case, that excuse was not justifiable (see, Cordts v Curry Oldsmobile Cadillac, 187 AD2d 806, 807). O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.