Charles Jones, Appellant, v. Hempstead School District, Respondent

Charles Jones, Appellant, v Hempstead School District, Respondent. [748 NYS2d 508] [MAJORITY] In an action, inter alia, to recover damages for breach of contract and wrongful termination from employment, the plaintiff appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), dated September 26, 2001, which denied his motion pursuant to CPLR 5015 (1) to vacate a prior order of the same court, dated June 19, 2001, which dismissed the complaint pursuant to CPLR 3216 (3), based upon his failure to file a note of issue within 90 days as required by an order of the same court, dated November 16, 2000. Ordered that the order is affirmed, with costs. The plaintiff failed to establish either the existence of a justifiable excuse for his default in properly responding to the 90-day notice or a meritorious claim (see Cangemi v Cassidy, 267 AD2d 344, 345). Therefore, the Supreme Court properly denied his motion to vacate a prior order of the same court, dated June 19, 2001, which dismissed the complaint pursuant to CPLR 3216 (3), based upon his failure to file a note of issue within 90 days, as required by an order of the same court, dated November 16, 2000. The plaintiffs remaining contentions are without merit. Feuerstein, J.P., Krausman, Luciano, Townes and Cozier, JJ., concur.