| Persaud v American Dental Ctrs. |
| 2006 NY Slip Op 51552(U) [12 Misc 3d 146(A)] |
| Decided on August 10, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from an order of the Civil Court, Bronx County (Francis M. Allesandro, J.), dated October 3, 2005, which denied its motion pursuant to CPLR 3216 to dismiss the complaint for lack of prosecution.
PER CURIAM:
Order (Francis M. Allesandro, J.), dated October 3, 2005, reversed, with $10 costs, motion granted and complaint dismissed.
Having failed to timely comply with a 90-day notice served pursuant to CPLR 3216 or to move for an extension of the 90-day period, plaintiffs were required to establish both a reasonable excuse for their failure to comply with the notice and a meritorious cause of action to avoid dismissal of their complaint (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 502-03 [1997]). Inasmuch as plaintiffs failed to offer any explanation for their failure to timely file a notice of trial or to demonstrate any potential merit to their dental malpractice claim, defendant's motion to dismiss should have been granted (see Grullon v Henry, 7 AD3d 342 [2004]).
This constitutes the decision and order of the court.
Decision Date: August 10, 2006