COX v. EDMISTER

Order unanimously reversed, on the law, without costs, and motions granted. Memorandum: Our court has been consistent in holding that, to defeat a motion to dismiss pursuant to CPLR 3216, plaintiff must show a justifiable excuse for failure to file a note of issue within the 90-day period and a meritorious cause of action (see, e.g., Highlands Ins. Co. v Maddena Constr. Co., 109 A.D.2d 1071, 1072; MacLeod v Nolte, 106 A.D.2d 860; Jones v First Fed. Sav. Loan Assn., 101 A.D.2d 1005; Abrams, Kochman, Rathskeller v Esquire Motels, 79 A.D.2d 879). On this record, plaintiff has failed to show either a justifiable excuse or that he has a meritorious cause of action. Absent such a showing, it was an abuse of discretion for Special Term to deny the motion (MacLeod v Nolte, supra).

Plaintiff's reliance on our decision in Foisy v Penn Aluminum ( 31 A.D.2d 783) is misplaced. In Foisy we were concerned only with general delay.