| Dominguez v Jamaica Med. Ctr. |
| 2010 NY Slip Op 03271 [72 AD3d 876] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Idelsia Dominguez, Appellant, v Jamaica Medical Center,Respondent. |
—[*1] Martin Clearwater & Bell, LLP, New York, N.Y. (Arjay G. Yao and Joseph L. DeMarzo ofcounsel), for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, theplaintiff appeals from a judgment of the Supreme Court, Queens County (O'Donoghue, J.), datedJuly 27, 2009, which, upon an order of the same court dated June 22, 2009, denying her motionto extend the time to serve and file a note of issue and granting the defendant's cross motionpursuant to CPLR 3216 to dismiss the complaint, dismissed the complaint.
Ordered that the judgment is affirmed, with costs.
Contrary to the plaintiff's contention, the written 90-day notice served by the defendantconformed to the provisions of CPLR 3216 (b) (3). The written notice demanded that theplaintiff resume prosecution of the action and serve and file a note of issue within 90 days afterreceipt of the demand, and also stated that the failure to comply with the demand will serve as abasis for a motion to dismiss the action (see Passet v Menorah Nursing Home, Inc., 68 AD3d 735 [2009];Itskov v Menorah Home & Hosp. forthe Aged & Infirm, 68 AD3d 723 [2009]; Rose v Aziz, 60 AD3d 925 [2009]; Harrison v Good Samaritan Hosp. Med.Ctr., 43 AD3d 996 [2007]). Furthermore, the two separate conditions precedent todismissal under CPLR 3216 (b) (1) and (2) had also been met (see Michaels v Sunrise Bldg. &Remodeling, Inc., 65 AD3d 1021, 1022 [2009]; Huger v Cushman & Wakefield, Inc., 58 AD3d 682, 683 [2009]).
Having received a 90-day notice, the plaintiff was required either to serve and file a timelynote of issue or move, before the default date, for an extension of time pursuant to CPLR 2004(see Benitez v Mutual of Am. Life Ins.Co., 24 AD3d 708 [2005]; Bokhari v Home Depot U.S.A., 4 AD3d 381 [2004]; McKinneyv Corby, 295 AD2d 580, 581 [2002]). The plaintiff did neither. To avoid dismissal of theaction, the plaintiff was required to show a justifiable excuse for the delay and a meritoriouscause of action (see Picot v City of NewYork, 50 AD3d 757 [2008]; Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006]; Estate of Hamilton v Nassau Suffolk HomeHealth Care, 1 AD3d 474 [2003]). The plaintiff failed to tender any excuse for herfailure to comply with the 90-day notice or for her three-year delay in the prosecution of thisaction (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997]; Picot v [*2]City of New York, 50 AD3d 757 [2008]; Ovchinnikov v Joyce Owners Corp.,43 AD3d 1124, 1127 [2007]; Serbyv Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006]). Furthermore, the plaintiff failed tosubmit any evidentiary proof in admissible form to demonstrate a meritorious cause of action(see Mosberg v Elahi, 80 NY2d 941, 942 [1992]; Fiore v Galang, 64 NY2d 999,1000-1001 [1985]; Salch v Paratore, 60 NY2d 851, 852 [1983]; Picot v City of New York, 50 AD3d757 [2008]; Burke v Klein, 269 AD2d 348 [2000]; Evans v Kringstein, 193AD2d 714 [1993]). Accordingly, the plaintiff's motion to extend the time to serve and file a noteof issue was properly denied and the defendant's cross motion to dismiss the complaint wasproperly granted. Skelos, J.P., Dillon, Angiolillo, Eng and Sgroi, JJ., concur.