MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division so that it may reconsider the matter and may exercise its own discretion.
The Appellate Division erred in holding, as a matter of law because the only excuse tendered by plaintiff constituted law office failure, that Special Term had abused its discretion in granting plaintiff's motion to vacate defendants' 90-day demand (CPLR 3216) and denying defendants' motion to dismiss the complaint for plaintiff's failure to serve a note of issue in response to that demand ( Miskiewicz v Hartley Rest. Corp., 58 N.Y.2d 963).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.