Granville v. R. E. Rappold Trucking Co.

— Order unanimously reversed on the law without costs and motion granted. Memorandum: Special Term erred in denying defendant’s motion to dismiss for want of prosecution. Defendant’s motion is governed by CPLR 3216 (e), which requires plaintiff to provide an affidavit of merit and a justifiable excuse for failing to file a timely note of issue in response to a 90-day demand. Plaintiff failed to make any showing of merit or provide a reasonable excuse and it was an abuse of discretion for Special Term not to have granted defendant’s motion (Skeet v Rashid, 124 AD2d 1035; MacLeod v Nolte, 106 AD2d 860, 861). (Appeal from order of Supreme Court, Erie County, Rath, Jr., J. — dismiss action.) Present — Dillon, P. J., Callahan, Green, Pine and Lawton, JJ.