Haiskins v. Jorge , 537 N.Y.S.2d 831 ( 1989 )

— In an action to recover damages for personal injuries, the defendant Avis Rent A Car System, Inc., appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated October 15, 1987, which denied its motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

Based upon a review of the record, we conclude that the Supreme Court erred in denying Avis’s motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute. Although the plaintiff’s papers submitted in opposition to Avis’s motion arguably set forth a reasonable excuse for her failure to comply with Avis’s 90-day demand to serve and file a note of issue pursuant to CPLR 3216 (b) (3), the plaintiff failed to submit an affidavit of merits or a verified pleading in lieu thereof. Accordingly, dismissal of the complaint was required (see, CPLR 3216 [e]; Groves v City of Newburgh, 126 AD2d 605). Mollen, P. J., Mangano, Brown and Sullivan, JJ., concur.