General
Christina M. Burridge et al., Respondents, v. John Gaines et al., Defendants, and Rosalie P. Covial, Appellant
281 A.D.2d 967722 N.Y.S.2d 681·New York Supreme Court, Appellate Division·2001·NY
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Opinion
Christina M. Burridge et al., Respondents, v John Gaines et al., Defendants, and Rosalie P. Covial, Appellant.
[722 NYS2d 681]
[MAJORITY]
Order unanimously reversed on the law without costs, motion granted and complaint against defendant Rosalie P. Covial dismissed. Memorandum: Supreme Court erred in denying the motion of Rosalie P. Covial (defendant) to dismiss the complaint against her for failure to prosecute. In response to defendant’s demand pursuant to CPLR 3216, plaintiffs neither filed a note of issue within 90 days nor moved to vacate the 90-day demand or to extend the time within which to file a note of issue. Plaintiffs did not file responding papers in opposition to defendant’s motion and thus failed to demonstrate an excuse for the delay or a meritorious cause of action (see, CPLR 3216 [e]). Plaintiffs filed a note of issue three days before the return date on the motion and their attorney appeared in opposition on the return date. Those actions were insufficient to defeat the motion. Thus, the court abused its discretion in denying the motion (see, Baczkowski v Collins Constr. Co., 89 NY2d 499, 504-505; see also, Rowley v Carl Zeiss, Inc., 270 AD2d 835, lv denied 95 NY2d 766; Geise v Wetherill, 238 AD2d 952). (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Dismiss Pleading.) Present — Pigott, Jr., P. J., Pine, Hayes, Scudder and Lawton, JJ.