Reed v. Duemmer

Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: The court erred in dismissing as moot defendant’s motion to dismiss the complaint for failure to file a note of issue within 90 days of the demand. Plaintiff failed to provide an affidavit demonstrating a justifiable excuse for the delay and a meritorious cause of action (see, CPLR 3216 [e]; McLennan v County of Erie, 154 AD2d 909; Granville v Rappold Trucking Co., 134 *1003AD2d 914; Charlotte Lake Riv. Assocs. v American Ins. Co., 130 AD2d 947, lv denied 70 NY2d 605; Skeet v Rashid, 124 AD2d 1035; Cox v Edmister, 122 AD2d 557, appeal dismissed 68 NY2d 900, lv denied 69 NY2d 603; MacLeod v Nolte, 106 AD2d 860). The motion was not rendered moot when plaintiff served and filed the note of issue on the return day of the motion almost 150 days after the demand. We therefore remit the matter to Supreme Court to hear and consider the motion. (Appeal from order of Supreme Court, Erie County, Fudeman, J.—dismiss complaint.) Present—Callahan, J. P., Doerr, Boomer, Pine and Balio, JJ.