FRAGA v. SMITHAVEN OPEN MRI

ORDERED that the order is affirmed, with costs.

The certification order dated April 18, 2000, which directed the plaintiff to serve and file a note of issue within 90 days pursuant to CPLR 3216, and which was signed by counsel for all parties, constituted a valid 90-day notice pursuant to CPLR 3216 ( see Bokhari v. Home Depot USA, 4 A.D.3d 381; Apicella v. Estate of Apicella, 305 A.D.2d 621, lv denied 100 N.Y.2d 513; Aguilar v. Knutson, 296 A.D.2d 562). Thus, having received a 90-day notice, the plaintiff was required either to timely file a note of issue or move, before the default date, to vacate the notice or to extend the 90-day period ( see Aguilar v. Knutson, supra; Vento v. Bargain Bilge W., 292 A.D.2d 596, 597; Raffa v. Cook, 289 A.D.2d 385).

More than two years after the default date, the plaintiff moved to deem a note of issue filed on July 26, 2001, to have been timely filed and to restore the action to the trial calendar. The plaintiff was required to demonstrate a justifiable excuse for the delay in properly responding to the 90-day notice and a meritorious cause of action ( see Washington v. Gorray, 302 A.D.2d 454, lv denied 1 N.Y.3d 502; Chong Suk Rose v. Heil Trailer Intl, 284 A.D.2d 445; Tietz v. Blatt, 280 A.D.2d 469). The plaintiff failed to do either ( see Allied Maintenance Corp. v. Allied Mechanical Trades, 42 N.Y.2d 538; V.S. Distribs. v. Emkay Trading Corp., 1 A.D.3d 350; Camelot Assoc. Corp. v. Camelot Design Dev., 298 A.D.2d 799; Sample, Inc. v. Porrath, 41 A.D.2d 118, 122, affd 33 N.Y.2d 961).

ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.