City of New York v. Philips

In an action, inter alia, to enjoin a public nuisance, the defendants appeal from an order of the Supreme Court, Richmond County (Amann, J.), dated Noveim ber 10, 1994, which denied their motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

Ordered that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in denying the defendants’ motion, since the plaintiff demonstrated a justifiable excuse for the delay in responding to the defendant’s 90-day demand and a meritorious cause of action (see, CPLR 3216 [e]; 2005; Jeune v O.T. Trans Mix Corp., 202 AD2d 640). Mangano, P. J., O’Brien, Pizzuto, Goldstein and Luciano, JJ., concur.