BRADY v. BENENSON CAPITAL CO

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Where a party is served with a 90-day notice pursuant to CPLR 3216, it is incumbent upon that party to comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the notice or extend the 90-day period ( see Hayden v. Jones, 244 A.D.2d 316; Rubin v. Baglio, 234 A.D.2d 534; Lopez v. Pathmark Supermarket, 229 A.D.2d 566; Spierto v. Pennisi, 223 A.D.2d 537). Once the specified period has expired, the party wishing to avoid dismissal must demonstrate both a justifiable excuse for the delay in properly responding to the 90-day notice and the existence of a meritorious cause of action ( see CPLR 3216[e]; Hayden v. Jones, supra; Turman v. Amity OBG Assocs., 170 A.D.2d 668; Papadopoulas v. R.B. Supply Corp., 152 A.D.2d 552). Here, the plaintiff failed to demonstrate either a justifiable excuse for the delay or the existence of a meritorious cause of action.

FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.