Miranda v. Town of Blooming Grove

In an action to recover damages for wrongful death, the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (Owen, J.), dated September 10, 1997, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3216, and (2) a judgment of the same court, dated October 2, 1997, which dismissed the complaint.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

*398On February 11, 1997, the defendant served upon the plaintiffs a 90-day notice of demand to serve and file a note of issue placing this case on the calendar. To avoid being held in default, a plaintiff served with a 90-day notice must either comply with the notice by filing a note of issue, or moving, before the default date, to vacate the notice or to extend the 90-day period (Rubin v Baglio, 234 AD2d 534; Shu Chaing Chan v Fendt, 187 AD2d 574). The plaintiffs here failed to do either. Thus, in order to avoid dismissal, the plaintiffs were obligated to demonstrate both a justifiable excuse for failure to comply with the notice and a good and meritorious cause of action (see, CPLR 3216 [e]; Hayden v Jones, 244 AD2d 316; Gache v Incorporated Vil. of Freeport, 202 AD2d 470; Rubin v Baglio, supra). Even if we were to accept the plaintiffs’ excuse for their failure to comply with the notice, they have made no attempt to demonstrate the existence of a good and meritorious cause of action. The court, therefore, properly dismissed the plaintiffs’ complaint. Pizzuto, J. P., Joy, Florio and Luciano, JJ., concur.