Defendant satisfied the prerequisites of CPLR 3216 by serving plaintiff with the court's order which warned that failure to file a note of issue within 90 days would result in dismissal of the action. Plaintiff failed to timely serve and file a note of issue or move to extend the time in which to comply with the demand. It was only after defendant moved to dismiss for failure to prosecute that plaintiff filed a note of issue, almost two years after service of the order and six months after a second service of the order.
Plaintiff's conclusory and unsubstantiated claim of law office failure due to firm relocations and staffing changes failed to establish a justifiable excuse for the delay.
The court's scrivener's error in its sole reference to CPLR 3126 instead of CPLR 3216 did not render the order defective where the court repeatedly referred to and quoted from CPLR 3216, making it clear that the action was dismissed under the governing standards of the correct statute.
Aguilar v. TMP Wireless, Inc., NY Slip Op 03725 (1st Dep't June 11, 2026)
