Practice point: After being served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period. Here, the plaintiff failed to do either within the 90-day period. Therefore, in order to excuse his default, the plaintiff was required to demonstrate a justifiable excuse for his failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action. The determination of what constitutes a reasonable excuse lies within the discretion of the motion court.
Student note: CPLR 3216 is extremely forgiving, in that it does not require, but merely authorizes, the court to dismiss an action based on the plaintiff's unreasonable neglect to proceed. In fact, depending on the circumstances, a plaintiff is not always required to establish both a justifiable excuse and a potentially meritorious cause of action to avoid such a dismissal.
Case: Belson v Dix Hills A.C., Inc., NY Slip Op 05144 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Service, and the due diligence requirement of 308(4).
