On July 24, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Albano v. Meir Transp., 2023 NY Slip Op. 32728(U), dismissing an action for failure to prosecute, explaining:
It is well settled that when. a plaintiff is served with a ninety day notice pursuant to §3216 then the plaintiff must comply with the notice or move to vacate the notice or seek an extension of time within ninety days. Where a plaintiff fails to comply with such ninety day notice then the plaintiff must demonstrate a reasonable excuse for such failure to respond to such notice as well as a meritorious cause of action.
In this case the plaintiffs have not presented any reasonable excuse at all. The plaintiffs assert they have been ready and willing to engage in any hearing_ about service of process, however, the plaintiffs have failed to address the hinety day notice served and have failed to timely respond to, the ninety day notice in any meaningful way. Assertions that discovery must be concluded before a note of issue can be filed does not present any reasonable excuse for failing to prosecute the action.
(Internal citations omitted).