
    Richard Abare, Respondent, v. William H. Moore, Appellant.
    Third Department,
    February 15, 1967.
    
      Halter, Sullivan db Rehfuss (John J. Cunningham of counsel), for appellant.
    
      Van Ness db Russell (Robert M. Douglas of counsel), for respondent.
   Per Curiam.

This is an appeal from an order of Supreme Court, Special Term, which denied defendant’s motion to dismiss the complaint for failure to file a note of issue pursuant to CPLR 3216.

CPLR 3216, captioned “ Want of prosecution ” as pertinent provides that a motion may not be made until at least six months after joinder of issue and after service of a written demand requiring such note of issue to be filed within 45 days thereafter and upon the plaintiff’s failure to so comply “ the court may grant such motion [to dismiss] unless the plaintiff shows justifiable excuse for delay and a good and meritorious cause of action ”.

The defendant in the present action served such demand and upon failure to comply within the prescribed time, moved to dismiss, the affidavit in support thereof .showing compliance with the terms and conditions of the rule and, further, that issue was joined by the filing of an answer on the 17th day of May, 1963, more than three years preceding the date of the motion (June 13, 1966). The plaintiff filed no affidavit in opposition showing ‘ justifiable excuse for delay and a good and meritorious cause of action ’’but addressed a letter to the Clerk of the Court, dated June 23, 1966, stating that the note of issue had been filed on June 15,1966.

Special Term, in denying the motion, stated that from the oral argument it appeared that there was a “ justifiable excuse for delay ’ ’ but failed to enumerate what constituted such excuse.

There was noncompliance with the rule by the plaintiff in failing to file the note of issue within 45 days after written demand and on the motion by failing to file an affidavit giving facts and circumstances which would show a ‘ ‘ justifiable excuse for delay and a good and meritorious cause of action ’ ’. (Cf. Sortino v. Fisher, 20 A D 2d 25.)

The order should be reversed, on the law and the facts, and the motion to dismiss the complaint' pursuant to CPLR 3216 should be granted on the merits.

Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in opinion Per Curiam.

Order reversed, on the law and the facts, and motion to dismiss complaint pursuant to CPLR 3216 granted, on the merits, without costs.  