King-Valls v. Mendel

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (LaTorella, J.), dated May 15, 2002, which denied their motion, inter alia, for an extension of time to file a note of issue and granted the defendant’s cross motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

Ordered that the order is affirmed, with costs.

After the plaintiffs received a 90-day notice, they were required either to timely file a note of issue or move pursuant to CPLR 2004 before the default date for an extension of time within which to comply (see Aguilar v Knutson, 296 AD2d 562 [2002]). The plaintiffs did neither.

To avoid dismissal upon the defendant’s cross motion, the *722plaintiffs were required to show a justifiable excuse for the delay and a meritorious cause of action (see CPLR 3216 [e]; Werbin v Locicero, 287 AD2d 617 [2001]). The plaintiffs failed to satisfy either prong of the test. Florio, J.P., S. Miller, Townes and Mastro, JJ., concur.