GOLDBERG v. TUNSTALL

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The Supreme Court's certification order dated March 30, 2000, had the same effect as a duly-served 90-day notice (see Doyle v. South Nassau Communities Hosp., 270 A.D.2d 225). To avoid a default pursuant to CPLR 3216, the plaintiffs were required to comply with the notice by timely filing a note of issue or by moving, before the expiration of the 90-day period, either to vacate the notice or extend the 90-day period (see Rubin v. Baglio, 234 A.D.2d 534; Lopez v. Pathmark Supermarket, 229 A.D.2d 566). Having failed to comply, the plaintiffs could avoid dismissal only by establishing a justifiable excuse for their delay in properly responding to the 90-day notice and the existence of a meritorious cause of action (see CPLR 3216[e]; Werbin v. LoCicero, 287 A.D.2d 617).

Here, the plaintiffs demonstrated neither a justifiable excuse for their delay (see Levin v. Levin, 256 A.D.2d 447; Olshansky v. Lutheran Med. Ctr., 211 A.D.2d 772) nor the existence of a meritorious cause of action (see Hogan v. City of Kingston, 243 A.D.2d 981; Rowley v. Carl Zeiss, Inc., 270 A.D.2d 835; Keating v. Smith, 20 A.D.2d 141). Accordingly, the Supreme Court erred in denying the defendants' motion to dismiss the complaint.

ALTMAN, J.P., SCHMIDT, TOWNES and COZIER, JJ., concur.